Magnuson-Stevens Fishery Conservation and Management Act Provisions; Fisheries of the Northeastern United States; Northeast (NE) Multispecies Fishery; Framework Adjustment 45, 11858-11890 [2011-4395]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
50 CFR Part 648
[Docket No. 100923469–1002–02]
RIN 0648–BA27
Magnuson-Stevens Fishery
Conservation and Management Act
Provisions; Fisheries of the
Northeastern United States; Northeast
(NE) Multispecies Fishery; Framework
Adjustment 45
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Proposed rule; request for
comments.
AGENCY:
NMFS proposes regulations to
implement measures in Framework
Adjustment (FW) 45 to the NE
Multispecies Fishery Management Plan
(FMP). FW 45 was developed by the
New England Fishery Management
Council (Council) to prevent
overfishing, rebuild overfished stocks,
achieve optimum yield (OY), and
minimize the economic impact of
management measures on affected
vessels, pursuant to the MagnusonStevens Fishery Conservation and
Management Act (Magnuson-Stevens
Act). This action would revise the
biological reference points and stock
status for pollock, update annual catch
limits (ACLs) for several stocks for
fishing years (FYs) 2011–2012, adjust
the rebuilding program for Georges Bank
(GB) yellowtail flounder, increase
scallop vessel access to the Great South
Channel Exemption Area, approve five
new sectors, modify the existing
dockside and at-sea monitoring
requirements, revise several sector
administrative provisions, establish a
Gulf of Maine (GOM) Cod Spawning
Protection Area, and refine measures
affecting the catch of limited access NE
multispecies Handgear A vessels. This
action would disapprove the Council’s
proposed catch limits for GB yellowtail
flounder for FY 2011, and instead
propose new catch limits for this stock
through emergency action authority
based on new flexibility provided by the
International Fisheries Agreement
Clarification Act. This action is
necessary to ensure that the fishery is
managed on the basis of the best
available science, to comply with the
acceptable biological catch (ABC)
control rules adopted in Amendment 16
to the FMP, and to enhance the viability
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SUMMARY:
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of the fishery following the transition to
sector management in 2010.
DATES: Comments must be received by
March 18, 2011.
ADDRESSES: You may submit comments,
identified by 0648–BA27, by any of the
following methods:
• Electronic submissions: Submit all
electronic public comments via the
Federal eRulemaking Portal: https://
www.regulations.gov.
• Fax: (978) 281–9135, Attn: Douglas
Christel.
• Mail: Paper, disk, or CD–ROM
comments should be sent to Patricia A.
Kurkul, Regional Administrator,
National Marine Fisheries Service, 55
Great Republic Drive, Gloucester, MA
01930. Mark the outside of the
envelope, ‘‘Comments on the Proposed
Rule for NE Multispecies Framework
Adjustment 45.’’
Instructions: All comments received
are a part of the public record and will
generally be posted to https://
regulations.gov without change. All
Personal Identifying Information (for
example, name, address, etc.)
voluntarily submitted by the commenter
may be publicly accessible. Do not
submit Confidential Business
Information or otherwise sensitive or
protected information. NMFS will
accept anonymous comments (enter
N/A in the required fields, if you wish
to remain anonymous). You may submit
attachments to electronic comments in
Microsoft Word, Excel, WordPerfect, or
Adobe PDF file formats only.
Copies of FW 45, its Regulatory
Impact Review (RIR), a draft of the
environmental assessment (EA)
prepared for this action, and the Initial
Regulatory Flexibility Act (IRFA)
analysis prepared by the Council are
available from Paul J. Howard,
Executive Director, New England
Fishery Management Council, 50 Water
Street, Mill 2, Newburyport, MA 01950.
The IRFA analysis assessing the impacts
of the proposed measures on small
entities and describing steps taken to
minimize any significant economic
impact on such entities is summarized
in the Classification section of this
proposed rule. The FW 45 EA/RIR/
IRFA, as well as the relevant analyses
for Amendment 16 and other recent
actions, are also accessible via the
Internet at https://www.nefmc.org/
nemulti/ or https://
www.nero.noaa.gov. Copies of recent
stock assessments for stocks managed by
the FMP are also accessible via the
Internet at https://www.nefsc.noaa.gov/
groundfish.
Written comments regarding the
burden-hour estimates or other aspects
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of the collection-of-information
requirements contained in this rule
should be submitted to the Regional
Administrator at the address above and
to the Office of Management and Budget
(OMB) by e-mail at
OIRA_Submission@omb.eop.gov, or fax
to (202) 395–7285.
FOR FURTHER INFORMATION CONTACT:
Douglas W. Christel, Fishery Policy
Analyst, phone: 978–281–9141, fax:
978–281–9135.
SUPPLEMENTARY INFORMATION:
Background
The FMP specifies management
measures for 16 species in Federal
waters off the New England and MidAtlantic coasts, including both largemesh and small-mesh species. Smallmesh species include silver hake
(whiting), red hake, offshore hake, and
ocean pout; while large-mesh species
include Atlantic cod, haddock,
yellowtail flounder, pollock, American
plaice, witch flounder, white hake,
windowpane flounder, Atlantic halibut,
winter flounder, redfish, and Atlantic
wolffish. Large-mesh species are further
divided into 19 individual stocks and
are referred to as ‘‘regulated species,’’
that, along with ocean pout, are
collectively referred to as groundfish.
A major overhaul of the FMP occurred
in 2004 with implementation of
Amendment 13 on May 1, 2004 (April
27, 2004; 69 FR 22906), which included
the establishment of rebuilding
programs for stocks managed by the
FMP and measures necessary to end
overfishing, rebuild overfished stocks,
and help mitigate the economic impacts
of effort reductions in the fishery to the
extent practicable. Amendment 13 also
established a biennial adjustment
process intended to update status
determination criteria, adopt and update
rebuilding programs, and revise
management measures necessary to
achieve the objectives of the FMP and
the mandates of applicable law. A
second substantial revision to the FMP
came in 2010, with the implementation
of Amendment 16 (April 9, 2010; 75 FR
18262). Amendment 16 updated status
determination criteria for all regulated
NE multispecies and ocean pout stocks
based upon revised assessments for all
stocks; adopted rebuilding programs for
stocks newly classified as being
overfished and subject to overfishing;
and revised management measures to
achieve the conservation objectives of
the FMP and to minimize the economic
impacts of such measures, including
significant revisions to the sector
management measures, reporting
requirements, trip limits, and days-at-
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sea (DAS) measures. Amendment 16 not
only established a process for specifying
ABCs and ACLs and distributing
available catch among components of
the fishery that catch regulated species
and ocean pout, but it also specified
accountability measures (AMs)
necessary to prevent overfishing on
these stocks and addressed overages of
ACLs, as required by the MagnusonStevens Act. 16 U.S.C. 1801 et seq. In
another action, FW 44 (April 9, 2010; 75
FR 18356), NMFS set the ACLs for FYs
2010 through 2012, and distributed such
allocations among the various
components of the fishery that catch
these stocks. An April 9, 2010, final rule
(75 FR 18113) implemented the
approval of 17 new sectors in FY 2010,
and specified their respective annual
catch entitlements (ACEs, or sector
quotas) for each stock allocated to
sectors pursuant to Amendment 16.
The Council developed FW 45 as part
of the established framework and
biennial adjustment process to revise
measures necessary to prevent
overfishing and rebuild overfished
stocks, while achieving OY in the
fishery and minimizing economic
impact to the extent practicable.
Pursuant to the Magnuson-Stevens Act,
the Council has proposed FW 45 to
NMFS, which has reviewed the
proposal and is presenting it for public
review. If implemented, FW 45 would
set and update ACLs for several stocks
pursuant to the process established by
Amendment 16 and FW 44. Updated
stock assessments for pollock and GB
yellowtail flounder conducted in 2010
require the ACLs originally established
under FW 44 to be updated based upon
revised stock status for pollock and a
revised rebuilding program for GB
yellowtail flounder proposed in FW 45.
Further, following the transition to
sectors under Amendment 16, the
Council realized that several changes to
existing measures are necessary to make
the Amendment 16 measures work more
effectively, as described below.
Proposed Measures
The following summarizes the
measures proposed by the Council in
FW 45, based on the order in which
applicable provisions appear in the
regulations at 50 CFR part 648. These
measures build upon the provisions
implemented by previous management
actions, and are intended to either
supplement or replace existing
regulations, as described for each
measure. This proposed rule also
includes revisions to regulations that are
not specifically identified in FW 45, but
that are necessary to correct errors in, or
clarify, existing provisions, as described
further below. The proposed regulations
implementing measures in FW 45 were
deemed by the Council to be consistent
with FW 45, and necessary to
implement such provisions pursuant to
section 303(c) of the Magnuson-Stevens
Act through a January 11, 2011, letter
from the Council Chairman to the
Regional Administrator (RA).
1. Status Determination Criteria for
Pollock
Amendment 16 updated the status
determination criteria for existing NE
multispecies regulated species and
ocean pout stocks based upon the best
available scientific information
regarding stock status resulting from the
Groundfish Assessment Review Meeting
(GARM III), a comprehensive stock
assessment for all species managed by
the FMP, conducted in August 2008.
GARM III originally characterized
pollock as overfished and subject to
overfishing. However, due to the high
uncertainty of the determination of
pollock stock status, as noted in the
GARM III stock assessment conclusions,
and on the advice from the Council’s
Scientific and Statistical Committee
(SSC), the body charged by the
Magnuson-Stevens Act with
recommending an ABC to the Council
for each stock, an updated pollock stock
assessment was conducted in 2010. The
pollock peer-reviewed benchmark stock
assessment review (Stock Assessment
Workshop, or SAW, 50) was completed
in June 2010, with the final summary
report completed on July 14, 2010. This
assessment determined that pollock is
not overfished or subject to overfishing.
Thus, this species no longer requires the
rebuilding program established in
Amendment 16. Based upon this
updated assessment, NMFS
implemented an emergency action (July
20, 2010; 75 FR 41996) to incorporate
the results of this assessment and
update the status determination criteria
and the associated FY 2010 ABC and
ACL for this species. On December 1,
2010 (75 FR 74661), this emergency
action was continued through the end of
FY 2010 (April 30, 2011).
In FW 45, NMFS proposes to integrate
the results of the 2010 pollock stock
assessment into the FMP. Table 1 lists
the proposed revised status
determination criteria, with numerical
estimates of these parameters listed in
Table 2. The revised biomass target
parameter for pollock, where spawning
stock biomass is at maximum
sustainable yield (SSBMSY) or its proxy,
is SSB at 40 percent maximum
spawning potential (MSP). The
maximum fishing mortality rate (F)
threshold is the FMSY proxy, or F40%MSP.
TABLE 1—DESCRIPTION OF THE PROPOSED POLLOCK STATUS DETERMINATION CRITERIA
Species
Biomass target
(Btarget)
Pollock .............................................
SSBMSY: SSB/R (40%MSP) ......................
Minimum biomass threshold
⁄ Btarget .....................................................
12
Maximum fishing
mortality
threshold
F40%MSP
TABLE 2—NUMERICAL ESTIMATES FOR THE PROPOSED POLLOCK STATUS DETERMINATION CRITERIA
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Species
Biomass target
(SSBMSY or
proxy) in mt
Maximum fishing mortality threshold
(FMSY or proxy)
Pollock .............................................
91,000 ........................................................
0.41 ............................................................
2. Rebuilding Program for GB Yellowtail
Flounder
In 2004, GARM II concluded that the
GB yellowtail flounder stock was
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overfished and subject to overfishing. In
response, the Council developed a
rebuilding program for this stock in FW
42 (October 23, 2006; 71 FR 62156).
That rebuilding program incorporated
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MSY
in mt
16,200
an adaptive rebuilding strategy that was
expected to rebuild the stock by 2014
with a 75-percent probability of success,
and was anticipated to rebuild this stock
in 8 years, 2 years ahead of the
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maximum rebuilding period allowed by
section 304(e)(4) of the MagnusonStevens Act. The intent of that
rebuilding program was to rebuild the
stock as quickly as possible, consistent
with efforts to jointly manage this stock
with Canada as part of the U.S./Canada
Resource Sharing Understanding
(Understanding).
More recent estimates of the status of
this stock conducted by the
Transboundary Resource Assessment
Committee (TRAC) in July 2010 indicate
that overfishing is not occurring, but
that the stock is still in an overfished
condition (TRAC 2010/05). This
estimate is affected by updated
estimates of the 2005 year class that
suggest this year class is much smaller
than previously thought. This report
concludes that it is not possible to
rebuild this stock by 2014, even at F =
0. Accordingly, as part of FW 45, the
Council proposes to revise the GB
yellowtail flounder rebuilding program
to rebuild the stock by 2016, with a 50percent probability of success to extend
the rebuilding program to the maximum
extent allowed by applicable law. This
revision would extend the rebuilding
program for this stock out to the
maximum 10-year rebuilding period
allowed by the Magnuson-Stevens Act
and lower the probability of success
from 75 percent to 50 percent in order
to maximize the amount of GB
yellowtail flounder that could be caught
while the stock rebuilds.
3. Overfishing Levels and ABCs for
Particular Stocks
NMFS also proposes in FW 45 to
revise the overfishing levels (OFLs) and
ABCs of particular stocks, including GB
cod, GB haddock, GB yellowtail
flounder, and pollock for FYs 2011 and
2012. Revisions to the OFLs and ABCs
for pollock and GB yellowtail flounder
are based upon the updated assessments
and revised rebuilding strategies for
these stocks, as described in Items 1 and
2 of this preamble, respectively, and by
the 2010 International Fisheries
Agreement Clarification Act for GB
yellowtail flounder, as described in Item
5 of this preamble. Revisions to the
OFLs and ABCs for the GB cod and GB
haddock stocks are based upon updated
TRAC assessments of the eastern
components of the stock. It is
anticipated that the FY 2012 values of
the ABCs for GB cod, GB haddock, and
GB yellowtail flounder will be revised
during 2011, based on new
transboundary stock assessments
conducted by the TRAC, and will likely
be specified again in conjunction with
the FY 2012 U.S./Canada Management
Area total allowable catch (TAC) levels,
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as further described in Item 5 of this
preamble. Table 3 contains the OFLs
and ABCs for FYs 2011 and 2012
proposed under FW 45 with the
exception of GB yellowtail flounder, as
noted below. The expected economic
impacts of the proposed ABCs are
summarized below.
For GB yellowtail flounder, the FY
2011 U.S. ABC shown in Table 3
represents a revised shared U.S./Canada
Management Area TAC based upon, and
consistent with, determinations and
decisions about this stock by the
Transboundary Management Guidance
Committee (TMGC), pursuant to the
Understanding in a February 9, 2011,
conference call. This meeting of the
TMGC was precipitated based on
provisions of the recently enacted
International Fisheries Agreement
Clarification Act which provides
increased flexibility to NMFS and the
Council in setting higher fishing limits
for those portions of stocks subject to
the Understanding. This Act states that
decisions made under that
Understanding should be considered as
‘‘management measures under an
international agreement’’ that ‘‘dictate
otherwise’’ for purposes of section
304(e)(4)(A)(ii) of the Act (16 U.S.C.
1854(e)(4)(A)(ii)) and that the Council
and the Secretary of Commerce may
‘‘establish catch levels for those portions
of fish stocks within their respective
geographic areas covered by the
Understanding on the date of enactment
of this Act that exceed the catch levels
otherwise required under the Northeast
Multispecies Fishery Management Plan
if * * * overfishing is ended
immediately.’’ (Sec. 202(2) and (3) of the
International Fisheries Agreement Act).
Because the U.S./Canada Management
Area represents the entire stock area for
GB yellowtail flounder, the shared U.S./
Canada Management Area TAC for this
stock also represents the ABC for this
stock. The revised ABC agreed to by the
TMGC is being proposed consistent
with the provisions of the International
Fisheries Agreement Clarification Act
and the harvest strategy of the
Understanding that requires overfishing
to be prevented and the facilitation of
the rebuilding of overfished stocks.
The revised ABC recommended by
the TMGC is higher than that approved
by the Council’s SSC and adopted by
the Council in FW 45 (i.e., a U.S. ABC
of 1,099 mt for FY 2011 and 1,222 mt
for FY 2012). Because this revised ABC
was not considered by the Council in
FW 45, NMFS proposes to implement
the revised FY 2011 ABC and ACL for
this stock as a separate but parallel
action to FW 45 pursuant to its
emergency action authority specified in
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section 305(c) of the Magnuson-Stevens
Act. NMFS has determined that the
adoption of the International Fisheries
Agreement Clarification Act meets the
criteria for proposing this emergency
action, as explained further in Item 5 of
this preamble. Because this proposed
revision would be made under the
authority to implement a Secretarial
emergency action pursuant to section
305(c) of the Magnuson-Stevens Act
instead of a Council action, the
involvement of the SSC in the
specification of the ABC for this stock
is not specifically required, although the
emergency rule must still be consistent
with the best scientific information
available. Although NMFS could wait
for the SSC to consider the new
assessment, the time necessary to
complete such a process would unduly
delay the possibility of increasing the
TAC for this stock as quickly as possible
and addressing the emergency
exigencies of this matter. NMFS has
determined that revising the ABC and
ACL through this proposed emergency
action is consistent with best scientific
information available. The duration of
this proposed revision to the GB
yellowtail flounder ABC is limited by
the Magnuson-Stevens Act to 180 days,
but may be extended to make the
revised ABC and ACL effective for the
duration of FY 2011 (through April 30,
2012), consistent with the authority in
the Magnuson-Stevens Act to extend
emergency actions for up to an
additional 186 days.
For FYs 2010–2012, the SSC
recommended that the ABC for GOM
winter flounder be specified based on
75 percent of recent catches of this stock
as part of FW 44. For FY 2011, the
Council tasked the SSC with reviewing
the GOM winter flounder catches for FY
2009 and any additional survey
information collected since GARM III to
determine whether revisions to the FY
2011 and 2012 ABCs are necessary for
this stock. The SSC considered available
information at its August 2010 meeting,
as well as an alternative approach to
determine the ABC for GOM winter
flounder by the Groundfish Plan
Development Team (PDT) that utilized
an area-swept survey approach to
determine the ABC for this stock.
However, the SSC was concerned that
increased catch resulting from the PDT’s
alternative approach to specifying ABC
for this stock could compromise stock
status or rebuilding, given lingering
uncertainty regarding the information
necessary to evaluate the risks of
jeopardizing stock status. Therefore, the
SSC did not recommend any changes to
the ABC for this stock, and the FW 44
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values for FY 2011 and FY 2012 are
maintained.
The OFL value for a stock is
calculated using the estimated stock size
for a particular year, and represents the
amount of catch associated with FMSY,
i.e., the F that, if applied over the long
term, would result in MSY. The ABCs
are those recommended to the Council’s
SSC following the SSC’s August 25–26,
2010, meeting and its reports to the
Council at the Council’s September and
November 2010 meetings. The ABCs
recommended by the SSC are lower
than the OFLs in order to take into
account scientific uncertainty in setting
catch limits. The ABC value for a stock
is calculated using the estimated stock
size for a particular year based upon the
ABC control rules established by
Amendment 16. The ABC represents the
amount of catch associated with 75
percent of FMSY, or the F rate required
to rebuild the stock within the defined
rebuilding time period (Frebuild),
whichever is lower, with the exception
of GOM and Southern New England
(SNE)/Mid-Atlantic (MA) winter
flounder. For SNE/MA winter flounder,
the ABC recommendations are based on
estimates of discards that result from
recent management measures. For GOM
winter flounder, the ABC
recommendation is based on 75 percent
of recent catches.
TABLE 3—PROPOSED REVISIONS TO OVERFISHING LEVELS AND ACCEPTABLE BIOLOGICAL CATCHES
OFL
(mt, live weight)
Stock
FY 2011
Georges Bank cod ...........
Georges Bank haddock ...
Georges Bank yellowtail
flounder .........................
White hake .......................
Pollock ..............................
FY 2012
U.S. ABC
(mt, live weight)
FY 2013
FY 2014
FY 2011
FY 2012
FY 2013
FY 2014
7,311
59,948
* 8,090
* 51,150
NA
NA
NA
NA
4,766
34,244
* 5,364
* 29,016
NA
NA
NA
NA
3,495
4,805
21,853
* 4,335
5,306
19,887
NA
NA
20,060
NA
NA
20,554
** 1,458
3,295
16,900
NA
3,638
15,400
NA
NA
15,600
NA
NA
16,000
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* Preliminary estimates that may be revised in 2012 based on TRAC and TMGC considerations.
** This value represents an increase from the U.S. ABC adopted by the Council in FW 45 based on the flexibility afforded by the International
Fisheries Agreement Clarification Act and described further in Item 5 of this preamble.
4. ACLs
Similar to adjustments in the OFLs
and ABCs described in Item 3 of this
preamble, FW 45 proposes revisions to
the ACLs for several stocks, including
GB cod, GB haddock, GB yellowtail
flounder, white hake, and pollock.
Pursuant to Magnuson-Stevens Act
requirements and Amendment 16, the
Council recommended ACLs that are
lower than the ABCs, in order to
account for management uncertainty.
The total ACL for a stock represents the
catch limit for a particular FY,
considering both biological and
management uncertainty, and the limit
includes all sources of catch (landed
and discards) and all fisheries
(commercial and recreational
groundfish fishery, State-waters catch,
and non-groundfish fisheries). The
division of a single ABC value for each
stock (for a particular FY) into subACLs, and ACL-subcomponents,
accomplishes three objectives: (1) The
ABC is sub-divided to account for all
components of the fishery and sources
of fishing mortality; (2) allocations are
made for certain fisheries; and (3)
management uncertainty is taken into
account, as described in Appendix II of
FW 45.
For FW 45 the ABC was sub-divided
into fishery components on a stockspecific manner, prior to the
consideration of management
uncertainty. The following components
of the fishery are reflected in the total
ABC: Canadian share/allowance
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(expected Canadian catch); U.S. ABC
(available to the U.S. fishery after
accounting for Canadian catch); State
waters (portion of ABC expected to be
caught from State waters outside
Federal management); other subcomponents (expected catch by other
non-groundfish fisheries such as
exempted fisheries); scallop fishery;
mid-water trawl fishery; commercial
groundfish fishery; and recreational
groundfish fishery. The percentage of
the ABC deducted for anticipated catch
from State waters is between 1 and 10
percent for most stocks, but for Atlantic
halibut and GOM winter flounder, 50
percent and 25 percent of the ABC of
each stock is set aside for State waters
catch, respectively. The amount
deducted for anticipated catch of other
regulated species and ocean pout in
other sub-components of the fishery is
between 4 to 6 percent of the ABC for
each stock, with the exception of
windowpane flounder stocks, in which
29 percent is set aside for such catch.
The allocation of yellowtail flounder
to the scallop fishery is not changed by
this framework. Under FW 44, the
Council elected to allocate 100 percent
of the estimated GB and SNE/MA
yellowtail flounder bycatch associated
with the projected scallop catch in FY
2010, and 90 percent of the yellowtail
flounder bycatch projected for the
scallop fishery in FYs 2011 and 2012.
Based on doubts about accurately
estimating expected bycatch in the
scallop fishery and not wanting to
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unnecessarily constrain the scallop
fishery, the Council voted to maintain
the specific FW 44 allocations of
yellowtail flounder to the scallop
fishery under FW 45, rather than base
yellowtail flounder allocations on
current information about anticipated
bycatch amounts in the scallop fishery.
Thus, the SNE/MA yellowtail flounder
allocations to the scallop fishery listed
in Tables 5 and 6 are the same amounts
implemented under FW 44 in 2010 (the
allocation of SNE/MA yellowtail
flounder remain at 82 and 127 mt, live
weight, respectively during FYs 2011
and 2012), while the GB yellowtail
flounder allocations to the scallop
fishery listed in Tables 11 and 12
remain at 200.8 and 307.5 mt, live
weight, respectively, during FYs 2011
and 2012. No specific allocation of Cape
Cod (CC)/GOM yellowtail flounder
would be made to the scallop fishery,
because the incidental catches of this
stock by the scallop fishery are
relatively low. Catches of this stock will
be considered part of the ‘‘other subcomponent’’ of the ACL.
The FY 2011 and 2012 yellowtail
flounder allocations to the scallop
fishery are characterized as sub-ACLs to
reflect the fact that the Council adopted
AMs for the scallop fishery that would
be responsive to yellowtail flounder
catches in excess of these sub-ACLs, as
part of Amendment 15 to the Atlantic
Sea Scallop FMP at its November 2010
meeting. A proposed rule soliciting
comment on that action is expected to
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be published shortly, with a final
decision to approve, partially approve,
or disapprove such measures expected
in spring 2011. Current regulations set
a cap on the amount of yellowtail
flounder that may be harvested from the
scallop access areas from the SNE/MA
and GB yellowtail flounder stock areas.
Specifically, current regulations cap
yellowtail flounder harvest from scallop
access areas at 10 percent of the ‘‘total
TAC’’ for each of the stock areas. In light
of the proposed ACL components, ‘‘total
TAC’’ means ‘‘total ACL.’’ For FY 2011,
this means 10 percent of 1,416 mt (141.6
mt) for GB yellowtail flounder, based on
the proposed total ACL listed in Table
11 proposed based on the flexibility
afforded by the International Fisheries
Agreement Clarification Act, as further
described in Item 4 of this preamble
below. Because the U.S./Canada
Management Area represents the entire
stock area for GB yellowtail flounder,
the U.S./Canada Management Area TAC
for this stock that is available to the U.S.
fishery also represents the ACL for this
stock. The specification and distribution
of the GB yellowtail flounder ACL is
discussed further in Item 5 of this
preamble and shown in Tables 11 and
12.
Under this action, the mid-water trawl
fishery would be allocated 0.2 percent
of the U.S. ABC for GB and GOM
haddock. The values for the allocations
to the mid-water trawl fishery listed in
Table 5 are slightly less than 0.2
percent, due to the 7-percent reduction
of these allocations to account for
management uncertainty for this stock.
For example, the FY 2011 ABC of
32,244 mt was multiplied by 0.002
(32,244 mt × .002 = 68.5 mt), and then
reduced by 4.79 mt (68.5 mt × 0.07 =
4.79 mt) to arrive at the proposed
allocation of 64 mt. Because the herring
fishery already has AMs associated with
this allocation that were developed as
part of FW 43 (August 15, 2006; 71 FR
46871), all of the haddock allocations to
the mid-water trawl fishery are
characterized as sub-ACLs.
The concept of management
uncertainty for the purpose of
developing ACLs, as outlined in the
process specified in Amendment 16 and
described in detail in FW 44, was
characterized as the likelihood that
management measures will result in a
level of catch that is greater than the
catch objective. Consistent with that
process, management uncertainty was
evaluated for each stock, considering
the following elements of the fishery
and the FMP: Enforceability; monitoring
adequacy; precision of management
tools; latent effort; and catch of
groundfish in non-groundfish fisheries.
For most stocks and components of the
fishery (ABC components), the default
adjustment (reduction) to the catch level
for a fishery component was 5 percent.
For stocks with less management
uncertainty, the adjustment was 3
percent, and for those stocks or
components with more management
uncertainty, the adjustment was 7
percent.
Tables 5 through 8 list the proposed
distribution of the total ACL for stocks
affected by measures in FW 45 to the
groundfish fishery, the scallop fishery,
the mid-water trawl herring fishery,
State waters fisheries, and other fishery
sub-components, such as exempted
fisheries. A full list of the FY 2011 ACLs
will be sent to NE multispecies permit
holders and posted on the NMFS
Northeast Regional Office Web site
(https://www.nero.noaa.gov) once
finalized. As noted in the FW 44 final
rule, while ACLs are specified through
FY 2012 for most stocks, it is likely that
the Council will adopt ACLs for FYs
2012 through 2014 though a future
Council action. Therefore, ACLs
specified through FY 2012 in FW 44 and
proposed in this action for FW 45 will
only be implemented if the anticipated
Council action is delayed. In contrast,
the pollock ACLs are not expected to be
revisited until FY 2013, with any
changes effective for FY 2014. The
proposed ACL listed in Table 5 for
white hake corrects an error published
in Table 4 of both the FW 44 proposed
(February 1, 2010; 75 FR 5021) and final
rules, respectively, that listed the
commercial sub-ACL for white hake for
FY 2011 as 2,566 mt (the FY 2010 value)
instead of the correct value of 2,974 mt.
For a detailed description of the process
used to estimate management
uncertainty and calculate ACLs as part
of FW 45, refer to Appendix II of the FW
45 EA (see ADDRESSES).
TABLE 5—TOTAL ACL, SUB-ACL, AND ACL-SUBCOMPONENTS FOR FY 2011
[Mt, live weight]
Stock
Groundfish
sub-ACL
Total ACL
GB cod .............................
GB haddock .....................
SNE/MA yellowtail flounder ................................
White hake .......................
Pollock ..............................
Mid-water trawl
herring fishery
Scallop fishery
State waters
ACL
sub-component
Other ACL
sub-components
4,540
32,616
4,301
30,840
0
0
0
64
48
342
191
1,370
641
3,138
16,166
524
2,974
13,952
82
0
0
0
0
0
0
33
769
27
132
1,445
TABLE 6—TOTAL ACL, SUB-ACL, AND ACL-SUBCOMPONENTS FOR FY 2012
[Mt, live weight]
srobinson on DSKHWCL6B1PROD with PROPOSALS2
Stock
GB cod * ...........................
GB haddock * ...................
SNE/MA Yellowtail flounder ................................
White hake .......................
Pollock ..............................
Groundfish
sub-ACL
Total ACL
Mid-water trawl
herring fishery
Scallop fishery
State waters
ACL
sub-component
Other ACL
sub-components
5,109
27,637
4,841
26,132
0
0
0
54
54
290
215
1,161
936
3,465
14,736
759
3,283
12,612
127
0
0
0
0
0
0
36
754
40
146
1,370
* Preliminary estimate that may be revised in 2012 based on Transboundary Resource Assessment Committee and Transboundary Resource
Management Committee considerations.
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TABLE 7—POLLOCK TOTAL ACL, SUB-ACL, AND ACL-SUBCOMPONENTS FOR FY 2013
[Mt, live weight]
Stock
Groundfish
sub-ACL
Total ACL
Pollock ..............................
14,927
Mid-water trawl
herring fishery
Scallop fishery
12,791
0
State waters
ACL
sub-component
0
Other ACL
sub-components
756
1,380
TABLE 8—POLLOCK TOTAL ACL, SUB-ACL, AND ACL-SUBCOMPONENTS FOR FY 2014
[Mt, live weight]
Stock
Groundfish
sub-ACL
Total ACL
Pollock ..............................
15,308
The commercial groundfish sub-ACL
is further divided into the non-sector
(common pool vessels) sub-ACL and the
sector sub-ACL, based on the total
vessel enrollment in all sectors and the
cumulative Potential Sector
Contributions (PSCs) associated with
those sectors. Table 9 lists the
preliminary distribution of the
groundfish sub-ACL between common
pool and sectors based on rosters
submitted to NMFS as of December 1,
2010. This distribution is different from
the common pool and sector sub-ACLs
listed in the EA for FW 45, as those were
based upon preliminary sector roster
information and do not reflect updated
rosters submitted to NMFS. However,
this distribution is the same as the
sector sub-ACLs and ACE specified for
each sector listed in the proposed rule
Mid-water trawl
herring fishery
Scallop fishery
13,148
0
State waters
ACL
sub-component
0
to approve sector operations plans for
FY 2011. That rule uses sector rosters
submitted to NMFS as of December 1,
2010, to calculate each individual
sector’s ACE for FY 2011, and which are
expected to publish soon. FY 2011
sector rosters will not be finalized until
May 1, 2011, because the owners of
individual permits signed up to
participate in sectors have until April
30, 2011, to drop out of a sector and fish
in the common pool. Therefore, it is
possible that the FY 2011 sector subACL listed in Table 9 and the proposed
rule to approve the FY 2011 sector
operations plans will be reduced at a
later date, and the common pool subACL will increase, due to vessels
leaving sectors and entering the
common pool after publication of the
Other ACL
sub-components
760
1,400
FW 45 final rule and specification of
ACLs for FY 2011.
Despite such changes, the proposed
groundfish sub-ACL (common pool subACL plus the sector sub-ACL) listed in
Tables 5 through 8 would not likely
change. Based on the final rosters,
NMFS intends to publish a rule in early
May 2011 to modify these sub-ACLs,
and notify the public if these numbers
change. In addition, it is almost certain
that all of the FY 2012 sub-ACLs for the
common pool and sectors will change
and be re-specified prior to FY 2012 due
to annual changes to the sector rosters
and changes to the ABCs for GB cod, GB
haddock, and GB yellowtail flounder
based on the specification of Canadian
TACs for these stocks, as described
above in Item 5 of this preamble.
TABLE 9—PRELIMINARY DISTRIBUTION OF GROUNDFISH SUB-ACL BETWEEN COMMON POOL AND SECTOR VESSELS
[Mt, live weight]
Groundfish sub-ACL
Common pool sub-ACL
Sector sub-ACL
Stock
FY 2011
Georges Bank cod ...........................................................
Georges Bank haddock ...................................................
Georges Bank yellowtail flounder ** .................................
White hake .......................................................................
Pollock ..............................................................................
4,301
30,840
1,142
2,974
13,952
FY 2012 *
FY 2011
4,841
26,132
1,142
3,283
12,612
99
129
17.4
35
138
FY 2012 *
111
109
17.4
39
125
FY 2011
4,202
30,711
1,124.6
2,939
13,814
FY 2012 *
4,730
26,023
1,124.6
3,244
12,487
srobinson on DSKHWCL6B1PROD with PROPOSALS2
* Preliminary estimate that may be revised in 2012 based on updated sector rosters and Transboundary Resource Assessment Committee and
Transboundary Resource Management Committee considerations.
** These values represent an increase from the ACLs adopted by the Council in FW 45 based on the flexibility afforded by the International
Fisheries Agreement Clarification Act and described further in Item 5 of this preamble.
5. Annual Specifications for the U.S./
Canada Management Area
The FMP specifies a procedure for
setting annual hard TAC levels (i.e.,
TACs that, when reached, will trigger a
regulatory response in the form of area
closures or other restrictions) for Eastern
GB cod, Eastern GB haddock, and GB
yellowtail flounder in the U.S./Canada
Management Area. The regulations
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governing the annual development of
TACs were authorized by Amendment
13 to the FMP in order to be consistent
with the Understanding, an informal
agreement between the Northeast
Region of NMFS and the Maritimes
Region of the Department of Fisheries
and Ocean of Canada (DFO) that
outlines a process for the management
of the shared GB groundfish resources.
The Understanding specifies an
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allocation of TAC for these three stocks
for each country, based on a formula
that considers historical catch
percentages and current resource
distribution.
Annual TACs for these stocks are
determined through a process involving
the Council, the TMGC, and the U.S./
Canada Transboundary Resources
Steering Committee. In August 2010, the
TMGC approved the 2010 Guidance
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Documents for Eastern GB cod and
Eastern GB haddock, which included
recommended U.S. TACs for these
stocks. The recommended FY 2011
TACs were based on the most recent
stock assessments (TRAC Status Reports
for 2010), and the fishing mortality
strategy shared by NMFS, the
Department of Fisheries and DFO. The
shared strategy has two parts: (1) To
maintain a low to neutral (less than 50percent) risk of exceeding the F limit
reference (Fref = 0.18, 0.26, and 0.25 for
cod, haddock, and yellowtail flounder,
respectively); and (2) when stock
conditions are poor, F should be further
reduced to promote rebuilding. The
Council reviewed the recommendations
of the TMGC and approved those
recommendations at its September 2010
meeting, as detailed further below.
The TMGC concluded that the most
appropriate combined U.S./Canada TAC
for Eastern GB cod for FY 2011 is 1,050
mt. This TAC corresponds to the
average of the pertinent two models for
a low risk (less than 25-percent) of
exceeding the Fref of 0.18 (i.e., FMSY) in
FY 2011, and a greater than neutral
probability of biomass growth of up to
10 percent. The annual allocation shares
between countries for FY 2011 are based
on a combination of historical catches
(10-percent weighting) and resource
distribution based on trawl surveys (90percent weighting). Applying this
formula results in the proposed
allocations of 19 percent of the shared
TAC to the U.S. and 81 percent for
Canada, or a FY 2011 quota of 200 mt
for the U.S. and 850 mt for Canada.
For Eastern GB haddock, the TMGC
concluded that the most appropriate
combined U.S./Canada Management
Area TAC for FY 2011 is 22,000 mt.
This corresponds to a 50-percent risk of
exceeding Fref (i.e., FMSY) of 0.26,
assuming the entire TAC will be caught
in FY 2010. In reality, this TAC level
represents a low risk level, because the
anticipated catch in FY 2010 will likely
be less than the FY 2010 TAC. The
annual allocation share
recommendations between countries for
FY 2010 are based on a combination of
historical catches (10-percent weighting)
and resource distribution based on trawl
surveys (90-percent weighting).
Applying this formula results in
proposed allocations of 43 percent of
the shared TAC to the U.S. and 57
percent to Canada, or a FY 2011 quota
of 9,640 mt for the U.S. and 12,540 mt
for Canada.
For GB yellowtail flounder, the TMGC
concluded that the most appropriate
combined U.S./Canada Management
Area TAC for FY 2011 is 1,900 mt. This
TAC corresponds to a low probability
(< 25 percent) of exceeding Fref (i.e.,
FMSY) of 0.25, and an expected 10percent increase in median biomass
from 2011 to 2012. The TMGC noted
that F was below 0.15 in 2008 and 2009.
The annual allocation share
recommendations between countries for
FY 2011 are based on a combination of
historical catches (10-percent weighting)
and resource distribution based on trawl
surveys (90-percent weighting). This
weighting results in proposed
allocations of 55 percent of the shared
TAC to the United States and 45 percent
to Canada, or a FY 2011 quota of 1,045
mt for the United States and 855 mt for
Canada.
TABLE 10—2011 U.S./CANADA TACS (MT, LIVE WEIGHT) AND PERCENTAGE SHARES (IN PARENTHESES)
Eastern GB cod
srobinson on DSKHWCL6B1PROD with PROPOSALS2
Total Shared TAC ................................................................................................
U.S. TAC ..............................................................................................................
Canada TAC ........................................................................................................
This proposed rule notifies the public
that a recent statute, the International
Fisheries Agreement Clarification Act,
signed by President Obama on January
4, 2011, affects the proposed FY 2011
U.S./Canada Management Area TAC
and ACL for GB yellowtail flounder.
Specifically, the new statute allows for
additional flexibility under the
Understanding regarding the range of
catch levels that may be considered for
GB yellowtail flounder, which allows
for a higher yearly TAC for this species.
As described in Item 4 of this
preamble, the catch limits for GB
yellowtail flounder result from the
annual recommendation of the TMGC, a
group that consists of NMFS and United
States fishing industry representatives
and their counterparts in the DFO and
the Canadian fishing industry. Based on
the new flexibility provided by the
International Fisheries Clarification Act,
the TMGC held a conference call on
February 9, 2011, to reconsider the FY
2011 shared GB yellowtail flounder
TAC. During this conference call, the
TMGC agreed to a revised shared GB
yellowtail flounder TAC for FY 2011 of
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1,050
200 (19%)
850 (81%)
2,650 mt (documentation of this call is
available from NMFS, see ADDRESSES).
This revised TAC represents a 39
percent increase compared to the FY
2011 TAC (i.e., 1,900 mt) originally
adopted by the Council as part of FW
45, and would increase the amount of
GB yellowtail flounder allocated to the
directed NE multispecies fishery (1,142
mt) by 44 percent compared to the
amount of this stock originally allocated
to this fishery under FW 45 (790.7 mt).
NMFS is considering implementing this
revised U.S./Canada Management Area
TAC for this stock based upon
Secretarial emergency authority
specified in section 305(c) of the
Magnuson-Stevens Act through the final
rule that would implement approved
measures under FW 45. To put this in
the context of the Magnuson-Stevens
Act, NMFS is proposing to disapprove
the ABC, ACL, and U.S./Canada
Management Area TAC for GB
yellowtail flounder adopted by the
Council in FW 45, and to replace them,
through its emergency authority, with
the revised ABC, ACL, and U.S./Canada
Management Area TAC for this stock
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Eastern GB
haddock
22,000
9,640 (43%)
12,540 (57%)
GB yellowtail
flounder
1,900
1,045 (55%)
855 (45%)
recommended by the TMGC following
its February 9, 2011 conference call.
NMFS policy guidelines for the use of
emergency rules (August 21, 1997; 62
FR 44421) specify the following three
criteria that define what an emergency
situation is, and justification for final
rulemaking: (1) The emergency results
from recent, unforeseen events or
recently discovered circumstances; (2)
the emergency presents serious
conservation or management problems
in the fishery; and (3) if the emergency
action is being implemented without
prior public comment, the emergency
can be addressed through emergency
regulations for which the immediate
benefits outweigh the value of advance
notice, public comment, and
deliberative consideration of the
impacts on participants to the same
extent as would be expected under the
normal rulemaking process. In this case,
the third prong of these criteria is not
directly involved because NMFS is
providing opportunity for prior public
comment. NMFS policy guidelines
further provide that emergency action is
justified for certain situations where
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emergency action would prevent
significant direct economic loss, or to
preserve a significant economic
opportunity that otherwise might be
foregone. The 2010 International
Fisheries Agreement Act, signed into
law by President Obama on January 4,
2011, is considered to be a ‘‘recently
discovered circumstance,’’ because the
Council was not aware if or when the
legislation would be considered by
Congress when it adopted final
measures under FW 45 at its November
2010 meeting. The emergency presents
serious management concerns because
the low catch limits for GB yellowtail
flounder dictated by Magnuson-Stevens
Act requirements in force before the
International Fisheries Agreement Act
was enacted could result in
substantially reduced fishing effort and
decreased catch and revenue compared
to the higher catch limits that would be
available if action is taken pursuant to
the International Fisheries Agreement
Act. For the common pool fishery, when
the projected catch of GB yellowtail
flounder is equal to the common pool
GB yellowtail flounder sub-ACL, such
vessels may no longer fish in the Eastern
U.S./Canada Area, and may not possess
yellowtail flounder caught in the
Western U.S./Canada Area. For vessels
fishing in sectors, when an individual
sector’s GB yellowtail flounder ACE is
caught, participating vessels may no
longer fish in the U.S./Canada
Management Area. As a result of the
loss of access to the Eastern U.S./Canada
Area (for common pool vessels) or the
whole U.S./Canada Management Area
(for sector vessels), not only do vessels
lose revenue associated with GB
yellowtail flounder, but they lose
revenue associated with multiple other
stocks that are caught concurrently,
such as GB winter flounder. Emergency
action to increase the GB yellowtail
flounder ACL and U.S./Canada
Management Area TAC would enable
additional economic opportunity that
could otherwise be forgone and,
therefore, likely avoid economic
impacts from an unnecessarily low ACL
for this stock, based upon applicable
law. Therefore, NMFS has determined
that the current situation meets the
criteria for emergency action.
Because the U.S./Canada Management
Area represents the entire stock area for
GB yellowtail flounder, the U.S./Canada
Management Area TAC for this stock
that is available to the U.S. fishery also
represents the ACL for this stock. Thus,
the revised GB yellowtail flounder TAC
proposed in this action also requires
applicable changes to the ACL, and how
the ACL for this stock is distributed to
the various components of the fishery
that catch this stock, that were adopted
by the Council in FW 45. The proposed
revised GB yellowtail flounder ACL,
sub-ACL, and ACL sub-components are
specified in Tables 11 and 12 for FYs
2011 and 2012, respectively. A revised
U.S./Canada TAC for GB yellowtail
flounder would not affect the sub-ACL
for the scallop fishery, specified by FW
45 as 200.8 mt.
TABLE 11—REVISED GB YELLOWTAIL FLOUNDER TOTAL ACL, SUB-ACL, AND ACL-SUBCOMPONENTS FOR FY 2011
[Mt, live weight]
Total ACL
Groundfish sub-ACL
Scallop fishery
Mid-Water trawl
herring fishery
State waters ACL
sub-component
Other ACL
sub-components
1,416
1,142
200.8
0
0
73
TABLE 12—REVISED GB YELLOWTAIL FLOUNDER TOTAL ACL, SUB-ACL, AND ACL-SUBCOMPONENTS FOR FY 2012
[Mt, live weight]
Total ACL*
Groundfish sub-ACL
Scallop fishery
Mid-water trawl
herring fishery
State waters ACL
sub-component
Other ACL
sub-components
1,426
1,046
307.5
0
0
77
srobinson on DSKHWCL6B1PROD with PROPOSALS2
* Preliminary estimate that may be revised in 2011 based on TRAC and TMGC considerations.
The regulations related to the
Understanding, promulgated by the
final rule implementing Amendment 13,
state that ‘‘any overages of the GB cod,
haddock, or yellowtail flounder TACs
that occur in a given fishing year will
be subtracted from the respective TAC
in the following fishing year.’’ Therefore,
if an analysis of the catch of the shared
stocks by U.S. vessels indicates that an
over-harvest occurred during FY 2010,
the pertinent components of the ACL
would be adjusted downward in order
to be consistent with the FMP and
Understanding. If an adjustment to one
of the FY 2011 TACs of cod, haddock,
or yellowtail flounder is necessary, it
will be done consistent with the
Administrative Procedure Act, and the
fishing industry will also be notified.
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6. Incidental Catch TACs and
Allocations to Special Management
Programs
This proposed rule specifies
incidental catch TACs applicable to the
NE multispecies special management
programs (i.e., special access programs
(SAPs) and the Regular B DAS Program)
for FYs 2011 and 2012, based on the
proposed common pool sub-ACLs listed
in Item 4 of this preamble. As noted
above, FY 2011 sector rosters will not be
finalized until May 1, 2011, because
permits currently enrolled in sectors
have until April 30, 2011, to drop out
of a sector and fish in the common pool.
Therefore, the amount of the common
pool sub-ACL may change based upon
changes to the number of vessels
participating in the common pool
during FY 2011. Based on the final
rosters, NMFS will publish a rule in
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early May 2011 to modify these subACLs, and notify the public if these
numbers change.
Incidental catch TACs are specified
for certain stocks of concern (i.e., stocks
that are overfished or subject to
overfishing) for common pool vessels
fishing in the special management
programs, in order to limit the amount
of catch of stocks of concern that can be
caught under such programs. The
Incidental Catch TACs proposed below
are consistent with the allocation of
incidental catch TACs among special
management programs in the FMP.
However, because pollock is no longer
considered overfished or subject to
overfishing, FW 45 proposes to remove
this species from the list of stocks of
concern, and eliminate the incidental
catch TAC for this stock.
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The incidental catch TACs apply to
catch (landings and discards) that end
on a Category B DAS (either Regular or
Reserve B DAS). The catch of stocks for
which incidental catch TACs are
specified on trips that start under a
Category B DAS and then flip to a
Category A DAS do not accrue toward
such TACs, but rather the overall
common pool sub-ACL for that stock.
The incidental catch TACs by stock
based on the common pool sub-ACL are
shown in Table 13, while Tables 14 and
15 list the distribution of these TACs
among existing special management
programs.
TABLE 13—PRELIMINARY COMMON POOL INCIDENTAL CATCH TACS BY STOCK FOR FY 2011–2012
[Mt, live weight]
Percentage of
sub-ACL
Stock
GB cod .......................................................................................................................
GOM cod ...................................................................................................................
GB yellowtail flounder ................................................................................................
CC/GOM yellowtail flounder ......................................................................................
SNE/MA yellowtail flounder .......................................................................................
American plaice .........................................................................................................
Witch flounder ............................................................................................................
SNE/MA winter flounder ............................................................................................
GB winter flounder .....................................................................................................
White hake .................................................................................................................
2011 Incidental
catch TAC
2
1
2
1
1
5
5
1
2
2
2012 Incidental
catch TAC
2.0
1.3
0.3
0.3
1.1
3.9
1.2
7.3
0.3
0.7
2.2
1.3
0.3
0.4
1.7
4.1
1.2
7.6
0.3
0.8
TABLE 14—DISTRIBUTION OF INCIDENTAL CATCH TACS AMONG SPECIAL MANAGEMENT PROGRAMS
[Mt, live weight]
Regular B DAS
program
(percent)
Stock
GB cod .......................................................................................................................
GOM cod ...................................................................................................................
GB yellowtail flounder ................................................................................................
CC/GOM yellowtail flounder ......................................................................................
SNE/MA yellowtail flounder .......................................................................................
Plaice .........................................................................................................................
Witch flounder ............................................................................................................
SNE/MA winter flounder ............................................................................................
GB winter flounder .....................................................................................................
White hake .................................................................................................................
Pollock .......................................................................................................................
Closed area I
hook gear
haddock SAP
(percent)
50
100
50
100
100
100
100
100
50
100
50
Eastern U.S./Canada haddock SAP
(percent)
16
na
na
na
na
na
na
na
na
na
16
34
na
50
na
na
na
na
na
50
na
34
TABLE 15—INCIDENTAL CATCH TACS FOR SPECIAL MANAGEMENT PROGRAMS BY STOCK FOR FY 2011–2012
[Mt, live weight]
Regular B DAS
program
Stock
FY 2011
srobinson on DSKHWCL6B1PROD with PROPOSALS2
GB cod .............................................................................
GOM cod ..........................................................................
GB yellowtail flounder ......................................................
CC/GOM yellowtail flounder ............................................
SNE/MA yellowtail flounder .............................................
American plaice ...............................................................
Witch flounder ..................................................................
SNE/MA winter flounder ..................................................
GB winter flounder ...........................................................
White hake .......................................................................
7. Great South Channel Exemption Area
The current regulations at § 648.80
state that a vessel may not fish in either
the GOM or GB Exemption Areas unless
it is fishing under a NE multispecies or
a scallop DAS, is fishing with exempted
gear, or is fishing in an exempted
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fishery, among other restrictions.
Several exempted fisheries were created
by previous adjustments to the FMP
based on a procedure for adding,
modifying, or deleting fisheries from the
list of exempted fisheries originally
established by FW 9 to the FMP on
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April 15, 1995 (60 FR 19364), and
expanded in Amendment 7 on May 31,
1996 (61 FR 27710). A fishery may be
exempted by the NMFS NE RA after
consultation with the Council, if the RA
determines, based on available data or
information, that the bycatch of
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regulated species of groundfish is, or
can be reduced to, less than 5 percent
by weight of the total catch, and that
such exemption will not jeopardize the
fishing mortality objectives of the FMP.
On October 25, 2005, a request was
submitted on behalf of the General
Category scallop fleet to establish an
additional exempted scallop dredge
fishery in the GOM/GB Exemption Area,
in the vicinity of traditional scalloping
grounds within the area known as the
Great South Channel, off Cape Cod, MA.
This request was approved, and the
Great South Channel Exemption Area
was created, on August 31, 2006 (71 FR
51779). That rule allowed vessels issued
a general category scallop permit, then
an open access permit, and vessels with
limited access scallop permits not
fishing under a scallop DAS allocation,
to use small dredges with a combined
width not greater than 10.5 ft (3.2 m) in
portions of the Great South Channel.
Two large portions of the exemption
area were closed seasonally to General
Category scallop vessels to protect
spawning populations of yellowtail
flounder during peak spawning periods,
including a southern closure from April
1 through June 30 of each year, and a
northern closure from June 1 through
June 30. However, limited access
scallop vessels fishing under a scallop
DAS could still fish within the Great
South Channel Exemption Area during
those peak spawning periods because
their catch of scallops, and, therefore,
yellowtail flounder, was limited by the
DAS effort controls in the scallop
fishery.
Since the 2006 rulemaking that
created the Great South Channel
Exemption Area, the general category
scallop permits have become limited
access permits subject to an individual
fishing quota (IFQ) system under
Amendment 11 to the Atlantic Sea
Scallop FMP (April 14, 2008; 72 FR
20090). Amendment 11 redefined the
general category permits as ‘‘limited
access general category,’’ or ‘‘LAGC’’
permits, and imposed limits on the
amount of scallop catch from each
LAGC IFQ vessels. Because of the catch
limits of the IFQs, the amount of
regulated species and ocean pout,
particularly yellowtail flounder, caught
by these vessels is also limited. Thus,
the main justification for the spawning
protection areas for general category
scallop vessels—to minimize the impact
on spawning yellowtail flounder—has
been significantly mitigated through
these catch limits. Further evaluation of
the catch of limited access scallop
vessels fishing on a DAS during these
spawning periods reveals that the
bycatch of yellowtail flounder in these
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areas during the peak spawning periods
is below the 5-percent bycatch threshold
established for exempted fisheries under
Amendment 7. Therefore, based upon
an industry request to reevaluate the
necessity of these spawning closures,
FW 45 proposes to eliminate the
yellowtail spawning closure areas
within the Great South Channel
Exemption Area and allow all scallop
vessels, including LAGC scallop vessels,
to fish within this area throughout the
entire year in accordance with
applicable scallop regulations. To
clarify that scallop vessels operating in
the Great South Channel Exemption
Area are still subject to the applicable
scallop regulations, a reference to the
scallop regulations at subpart D of 50
CFR part 648 was included in the
proposed regulations.
8. GOM Cod Spawning Protection Area
During the solicitation of public
comment on measures proposed under
Amendment 16, several individuals
expressed concern regarding the impact
of fishing activity on known spawning
aggregations of GOM cod. Similar
concerns were identified by the
Massachusetts Division of Marine
Fisheries during the early development
of FW 45. In response, FW 45 proposes
to create a GOM Cod Spawning
Protection Area that would be effective
from April through June of each year to
protect spawning aggregations of GOM
cod.
The proposed GOM Cod Spawning
Protection Area is rectangular in shape
and would be located just south of the
Isle of Shoals off the New Hampshire
coastline, with its long axis oriented in
a northwest to southeast direction. The
exact coordinates for this proposed area
are specified in section 4.3.2 of FW 45
and in this proposed rule. This area was
identified by researchers at the
University of New Hampshire, working
in conjunction with several commercial
fishing vessels, and corresponds to areas
and times when large spawning cod
congregate during peak spawning
months. The proposed area is intended
to prevent fishing from interfering with
spawning activity and reducing future
recruitment in the fishery.
As proposed, all commercial fishing
vessels using gear capable of catching
groundfish would be prohibited from
fishing within the proposed area from
June 1 through June 30 of each year,
while all recreational vessels would be
prohibited from using gear capable of
catching groundfish in the area from
April 1 through June 30 of each year.
For commercial vessels, only vessels
fishing with ‘‘exempted gear,’’ as defined
in the current regulations, would be
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allowed into this area during the closure
periods. Exempted gear includes pelagic
hook and line gear, pelagic longline
gear, spears, rakes, diving gear, cast
nets, tongs, harpoons, weirs, dipnets,
stop nets, pound nets, pelagic gillnets,
pots and traps, shrimp trawls with a
properly configured grate, and surfclam
and ocean quahog dredges. Pelagic
gillnet gear is currently further defined
as a single pelagic gillnet not longer
than 300 ft (91.4 m) and not greater than
6 ft (1.83 m) deep, with a maximum
mesh size of 3 inches (7.6 cm), that is
attached to the boat and fished in the
upper two-thirds of the water column.
Only pelagic hook-and-line gear, as
defined in the current regulations,
would be allowed to be used in the area
by recreational vessels. For both
recreational and commercial vessels,
‘‘pelagic hook and line gear’’ is defined
as handline or rod and reel gear that is
designed to fish for, or that is being used
to fish for, pelagic species, no portion of
which is designed to be or is operated
in contact with the bottom at any time.
The catch or possession of any regulated
species or ocean pout by vessels using
the exempted gear described above from
April 1 through June 30 of each year
would be prohibited. Both recreational
and commercial vessels would be
allowed to transit the proposed area,
provided all gear is stowed according to
existing regulations.
During the development of FW 45,
draft measures and discussions at
Council and Groundfish Oversight
Committee meetings made it clear that
the Council did not intend to allow
vessels using midwater trawl gear to fish
in the proposed GOM Cod Spawning
Protection Area from April 1 through
June 30. However, it is less clear
whether the Council intended this
prohibition to also apply to vessels
employing purse seine gear. The
proposed regulations to implement FW
45 that were submitted by the RA to the
Council for deeming consistent with
section 303(c) the Magnuson-Stevens
Act reflected the current text in the FW
45 document, as described above.
Therefore, because midwater trawl gear
and purse seine gear are not included in
the current list of exempted gear, this
action would not allow commercial
vessels fishing with either midwater
trawl gear or purse seines into this area
during June of each year. These
regulations were deemed consistent
with FW 45 and the FMP by the Council
Chairman through a letter dated January
11, 2011. Accordingly, NMFS considers
the proposed regulations to be
consistent with Council intent for FW
45.
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9. Handgear A and B Measures
Cod Trip Limit
Amendment 13 originally created the
limited access NE multispecies
Handgear A permit and open access NE
multispecies Handgear B permit, and
specified the existing effort controls for
such permits, including trip limits. The
cod trip limit for Handgear A and B
vessels implemented under Amendment
13 was set at 300 lb (135 kg) and 75 lb
(90.7 kg) per trip, respectively, and did
not differentiate between the GOM and
GB cod stocks. In addition, Amendment
13 implemented measures that adjusted
these cod trip limits proportionally to
any changes to the GOM cod limit
specified for NE multispecies DAS
vessels in § 648.86(b), rounded up to the
nearest 50 lb (22.7 kg) for Handgear A
vessels and 25 lb (11.3 kg) for Handgear
B vessels. Further, Amendment 13 did
not differentiate between the GOM and
GB cod stocks regarding adjustments to
the cod trip limits. Thus, under
Amendment 13, if the GOM cod limit
specified for DAS vessels was reduced,
the cod limit for Handgear A and B
vessels would be reduced as well,
regardless of whether such vessels
fished in either the GOM or GB cod
stock area, as demonstrated in an
adjustment to such trip limits on July
30, 2010 (75 FR 44924).
FW 45 proposes to rectify these two
issues by clarifying that the cod trip
limits applicable to Handgear A and B
vessels are stock-specific to the GOM or
GB cod stock, including any
adjustments to such trip limits.
Handgear A vessels would be subject to
an initial cod limit of 300 lb (135 kg) per
trip for both the GOM and GB cod
stocks, until NMFS adjusts the cod trip
limit applicable to common pool vessels
fishing under a NE multispecies DAS for
either of these stocks below 300 lb (135
kg) per trip. Once either the GOM or the
GB cod trip limit for common pool DAS
vessels is reduced below 300 lb (135 kg)
per DAS, the applicable cod trip limit
for Handgear A vessels would be
adjusted to be the same as the daily
limit for common pool DAS vessels. For
example, if only the GOM cod trip limit
for NE multispecies DAS vessels was
reduced to 250 lb (113.4 kg) per DAS,
then the cod trip limit for a vessel
issued a Handgear A category permit
that is fishing in the GOM Regulated
Mesh Area (i.e., the area specified for
the GOM cod trip limit) would also be
reduced to 250 lb (113.4 kg); however,
the cod trip limit for a Handgear A
vessel fishing for GB cod south of the
GOM Regulated Mesh Area (the GB cod
stock area is considered the GB, SNE,
and MA Regulated Mesh Areas) would
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be maintained at 300 lb (135 kg) per
trip. The initial Handgear B cod limit for
both the GOM and GB stocks would be
maintained at 75 lb (90.7 kg) per trip,
but would be adjusted proportional
(rounded up to the nearest 25 lb (11.4
kg)) to any changes in the daily GOM or
GB cod trip limits for DAS vessels in the
future, as necessary. For example, if the
GOM cod trip limit was reduced by 50
percent from 800 lb (362.9 kg) per DAS
to 400 lb (181.4 kg) per DAS, then the
cod trip limit for a Handgear B vessel
fishing in the GOM Regulated Mesh
Area would also be reduced by 50
percent to 37.5 lb (17 kg), rounded to
the nearest 25 lb (11.3 kg), or 50 lb (22.7
kg) per trip. In this example, the cod trip
limit for a Handgear B vessel fishing for
GB cod south of the GOM Regulated
Mesh Area would be maintained at 75
lb (90.7 kg) per trip.
FW 45 explicitly provides NMFS with
the ability to propose administrative
measures necessary to implement the
stock-specific cod trip limits, including
a letter of authorization (LOA) to fish in
defined stock areas. Consistent with
existing provisions to administer
different cod trip limits for DAS vessels
that were first established by FW 20
(April 1, 1997; 62 FR 15381), NMFS
proposes to require the owner or
operator of a Handgear A or B vessel to
declare his or her intent to fish for GB
cod by obtaining and retaining on board
a paper LOA from the RA. Alternatively,
the owner or operator of a Handgear A
permitted vessel may declare his or her
intent to fish for GB cod south of the
GOM Regulated Mesh Area prior to each
trip via a vessel monitoring system
(VMS), if the vessel elects, or is required
(i.e., when fishing in multiple broad
stock areas on the same trip), to use
VMS under the current regulations.
These declarations enable at-sea
enforcement personnel to identify the
applicable cod trip limits and effectively
enforce the appropriate regulations
during boarding operations. The
minimum participation period for this
LOA would be 7 consecutive days to
minimize the administrative burden of
this provision, consistent with existing
practice for LOAs issued to DAS vessels.
If a vessel declares via VMS, this would
be required on a trip-by-trip basis, and
no minimum participation period is
necessary.
Because the current cod trip limits are
based upon Regulated Mesh Area, not
stock area, the owner or operator of a
Handgear A or B vessel that intends to
fish for GB cod would commit to fishing
south of the GOM Regulated Mesh Area.
Consistent with the existing cod LOA
for DAS vessels, this action proposes to
restrict vessels issued the cod LOA
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described above to fishing south of the
GOM Regulated Mesh Area for the
duration of the LOA to more effectively
enforce this measure. NMFS is
particularly interested in soliciting
public comment regarding this
restriction, as neither FW 45, nor
Council or Groundfish Oversight
Committee discussion of this measure
explicitly considered this restriction.
Access to Seasonal Closure Areas
The catch of regulated species and
ocean pout by vessels issued either a
Handgear A or B permit participating in
the common pool is limited not only by
the cod trip limits described above, but
also by seasonal closure areas, and the
common pool sub-ACL for each stock.
The current seasonal closure areas in
the GOM and on GB run from March
through June, and October and
November, and include large portions of
inshore waters most frequently fished
by the predominantly smaller handgear
vessels. Accordingly, many of these
vessels are unable to fish during these
months, because it would be unsafe for
them to venture farther offshore and fish
in open areas.
Existing regulations implementing
FW 44 allow the RA to adjust the trip
limits applicable to common pool
vessels, including those issued a
Handgear A or B permit, to ensure the
common pool sub-ACLs are not
exceeded before the end of the FY. This
authority was utilized during FY 2010
to reduce trip limits for stocks caught by
Handgear A and B vessels, including
cod and haddock, as early as May 27,
2010 (75 FR 29678). Thus, handgear
vessels are competing against often
larger trawl, gillnet, and hook vessels to
catch the available sub-ACL of each
stock. However, due to the operational
limitations caused by the seasonal
closure areas, handgear vessels are often
precluded from fishing, particularly in
the GOM, until June or July of each year.
If common pool trip limits are reduced
before June to prevent a sub-ACL from
being exceeded, the trip limits might be
reduced so low as to make it
economically unviable for handgear
vessels to fish at all during a particular
FY.
To ensure that handgear vessels are
provided an opportunity to fish during
at least the early part of the FY, FW 45
proposes to exempt both Handgear A
and B vessels from the GB Seasonal
Closure Area defined in § 648.81(g), and
to allow Handgear A vessels to also fish
in the Sector Rolling Closure Areas
defined in § 648.81(f)(2)(vi)(A) through
(C), and depicted in section 4.3.3 of FW
45. These latter areas represent smaller
portions of the GOM Rolling Closure
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Areas, and would enable Handgear A
vessels fishing in the GOM a greater
chance at catching some of the available
sub-ACLs for cod and haddock during a
particular FY before such trip limits are
reduced to prevent the ACL from being
exceeded. It is unlikely that this
measure would increase F or jeopardize
rebuilding requirements for overfished
stocks, as the sub-ACLs and associated
AMs established for the common pool
are sufficient to prevent overfishing and
to continue to rebuild overfished stocks.
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10. Dockside/Roving Monitor
Requirements
FW 45 proposes several revisions to
the existing dockside/roving monitor
requirements originally established in
2010 under Amendment 16. Each of
these revisions is considered a separate
provision and is discussed in further
detail below.
Delay in Requirement for Industry To
Fund Dockside/Roving Monitors
One of the primary objections to the
dockside/roving monitoring program
expressed by the public during the
development and implementation of
Amendment 16 and the development of
FW 45 was the high cost of providing
sufficient coverage to monitor offloads.
As a result, NMFS made sufficient
funding available to pay for 100 percent
of the costs associated with dockside/
roving monitoring coverage in FY 2010,
and pledged to do the same in FY 2011
to help alleviate the economic impacts
of monitoring costs and smooth the
transition to a quota-based management
regime in the FMP.
To address lingering concerns
regarding the ability of the fishing
industry to pay for future costs of a
dockside/roving monitoring program,
particularly while stocks continue to
rebuild, NFMS proposes to delay the
industry’s responsibility for paying for
dockside/roving monitoring coverage
until FY 2013. Instead, NMFS would
specify coverage levels during FYs 2011
and 2012 based upon available NMFS
funding. None of the costs associated
with dockside/roving monitors during
FYs 2011 and 2012 would be imposed
upon the owner or operator of a NE
multispecies vessel. NMFS would
endeavor to provide dockside/roving
monitoring coverage to observe the
offloads of up to 100 percent of sector
and, for FY 2012, common pool trips, if
funds are available. If funds are not
available for monitoring 100 percent of
groundfish trips, NMFS would first
provide dockside/roving monitor
coverage to trips that do not have an
observer, at-sea monitor, or approved
electronic monitoring equipment.
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Dockside/Roving Monitoring Program
Requirements Beginning in FY 2013
Neither the Council motion approving
the delayed industry funding of
dockside/roving monitor coverage
discussed above, nor FW 45 explicitly
describes the Council’s intent regarding
dockside/roving monitoring
requirements beginning in FY 2013.
Amendment 16 clearly indicated the
Council’s intention to monitor landings
of regulated species and ocean pout by
all limited access NE multispecies
vessels beginning in FY 2012, and that
the industry would eventually be
responsible for the costs of dockside/
roving monitoring requirements. Based
upon the intention expressed in
Amendment 16, NMFS interprets the
language describing the measures in the
FW 45 EA to reinstate the dockside/
roving monitoring requirements
originally implemented under
Amendment 16 beginning in FY 2013.
Thus, proposed regulations to
implement FW 45 that were submitted
by the RA to the Council for deeming
included, starting again in 2013, the
requirement for sectors to develop and
pay for a dockside/roving monitoring
program as part of their annual
operations plans, the requirement for
common pool vessels to be subject to
dockside/roving monitoring upon the
transition to a trimester TAC AM, the
trip-start and trip-end hail reporting
requirements associated with such
provisions, and the requirement for
dockside/roving monitors to observe the
landings of 20 percent of all common
pool and sector trips determined in a
statistically random manner. These
regulations were deemed consistent
with FW 45 and the FMP by the Council
Chairman through a letter dated January
11, 2011. Accordingly, NMFS considers
the proposed regulations to be
consistent with Council intent for FW
45.
As noted above, the regulations
implementing Amendment 16 currently
require common pool vessels to comply
with dockside/roving monitoring
requirements beginning in FY 2012. To
facilitate administration and compliance
with the dockside/roving monitoring
operational standards specified at
§ 648.87(b)(5), the regulations at
§ 648.82(n)(2)(iv) indicate that such
vessels may only use one dockside/
roving monitor service provider per FY.
Further clarification of this requirement
was provided in the March 30, 2010,
permit holder letter explaining the
Amendment 16 regulations. That letter
indicated that the owner of each
common pool vessel must contract with
a dockside/roving monitoring service
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provider approved by NMFS beginning
in FY 2012. Because this action
proposes to require most common pool
vessels to comply with the dockside/
roving monitoring provisions originally
implemented under Amendment 16
beginning in FY 2013, this action would
revise the regulations at
§ 648.82(n)(2)(iv) to clearly state that the
owner or operator of each common pool
vessel subject to dockside/roving
monitoring requirements must contract
for such services with a service provider
approved by NMFS by 2013. The need
for vessel owners to contract with a
specific service provider is necessary in
the absence of any NMFS-controlled
dockside/roving monitoring program in
which NMFS can act as a mediator
between the fishing industry and
approved service providers. Further,
because each individual permit is
considered a separate legal entity,
NMFS is not inclined to mandate that
common pool vessels use a particular
service provider in a particular FY in
order to increase competition among
service providers and potentially
decrease costs to the affected vessel
owners. Groups of vessel owners,
however, may elect to contract with the
same service provider to help lower the
costs associated with such
requirements.
Exemption of the Dockside/Roving
Monitor Requirements for Certain
Permit Categories
Vessels issued a limited access NE
multispecies Handgear A or Small
Vessel Category permit, and vessels
issued an open access NE multispecies
Handgear B permit, land very small
amounts of regulated species and ocean
pout compared to vessels issued limited
access NE multispecies DAS permits.
Thus, dockside/roving monitoring costs
would represent a greater proportion of
their operational costs compared to NE
multispecies vessels operating under a
NE multispecies DAS. Based on public
input, there is the potential that such
costs would be more than the value of
fish landed on a particular trip.
Accordingly, FW 45 proposes to exempt
Handgear A, Handgear B, and Small
Vessel category permits from any
dockside/roving monitoring
requirements when operating in the
common pool. Under such an
exemption, it would not be possible for
dockside/roving monitor service
providers to provide statistically
random coverage of all common pool
trips, as required under Amendment 16.
Therefore, the proposed regulations
would also revise the Amendment 16
dockside/roving monitoring coverage
provisions to accommodate this
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exemption, and specify that service
providers must provide random
coverage of all trips subject to the
dockside/roving monitoring
requirements.
Trip-End Hail Requirement
Based upon a pilot dockside/roving
monitoring program, the dockside/
roving monitor provisions implemented
under Amendment 16 currently require
that vessels submit both a trip-start and
trip-end hail report. The trip-start hail
report was intended to provide the basic
trip information necessary for dockside/
roving service providers to coordinate
the deployment of dockside/roving
monitors, including the date, time, and
port of intended landing and offloading.
The trip-end hail report provides more
detailed information that confirmed or
revised information submitted in the
trip-start hail report. This latter report is
also used by both State and Federal
enforcement personnel to facilitate
dockside intercepts.
As described above, the Council
considered, but did not approve, a
motion that would have eliminated the
dockside/roving monitoring
requirements of Amendment 16.
Instead, in FW 45, NMFS proposes to
rely upon its available funding to
determine the amount of dockside/
roving monitoring coverage in FYs 2011
and 2012. If the Council had elected to
eliminate completely the dockside/
roving monitor requirements, the tripend hail report would have also been
eliminated. Because the recent
transition to quota-based management
under ACLs and AMs increases
incentives to misreport or underreport
landings of regulated species and ocean
pout, the Council considered it
important to ensure that the trip-end
hail report in FW 45 was retained, even
if there was insufficient NMFS funding
to support dockside/roving monitoring
coverage in FYs 2011 or 2012. This
measure is expected to increase the
chances that a particular trip would be
subject to dockside inspection by
enforcement personnel and may, in
turn, increase compliance with
applicable measures and the accuracy of
landings data used to monitor the
fishery.
Beginning in FY 2011, if
implemented, FW 45 would require all
sector vessels and common pool vessels
fishing under a DAS to submit trip-hail
report via VMS prior to returning to
port. If there is sufficient NMFS funding
to provide for some level of dockside/
roving monitor coverage, vessels
assigned a dockside/roving monitor for
a particular trip would be required to
submit both a trip-start and a trip-end
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hail report for that trip, however,
consistent with current practice. The
trip-end hail report would contain the
same information as the trip-end hail
report implemented by Amendment 16,
including the vessel permit number;
vessel trip report (VTR) serial number of
the first VTR page for that trip; intended
offloading location(s), including the
dealer name/offload location, port/
harbor, and State for the first dealer/
facility where the vessel intends to
offload catch and the port/harbor and
State for the second dealer/facility
where the vessel intends to offload
catch; estimated date/time of arrival;
estimated date/time of offload; and the
estimated total amount of all species
retained, including species managed by
other FMPs (in pounds, landed weight)
on board at the time the vessel first
offloads its catch from a particular trip.
This report, if submitted when there is
insufficient funding to provide for a
NMFS-controlled dockside/roving
monitoring program, would only be
submitted to NMFS’ Office of Law
Enforcement rather than also to a
dockside/roving monitor service
provider.
Inspection of Fish Holds
Amendment 16 established approval
requirements for entities providing
dockside/roving monitoring services.
These standards included hiring
individual dockside monitors that were
capable of climbing ladders and
inspecting fish holds. For FY 2010,
NMFS developed operational standards
necessary to implement the Amendment
16 dockside monitoring provisions,
based on a pilot dockside/roving
monitoring program conducted during
the summer of 2009. These standards
did not require dockside monitors to
inspect fish holds for FY 2010.
However, based on further evaluation of
the performance of the dockside
monitoring program and consideration
of concerns expressed by enforcement
personnel, NMFS is proposing to
require dockside monitors to inspect the
fish holds for any trip that is assigned
a dockside/roving monitor beginning in
FY 2011. This requirement would
enhance the enforceability of existing
provisions and minimize the incentives
to under-report/misreport the amount of
regulated species landed.
11. Sector Measures
Distribution of the PSC From Cancelled
Permits
As described in Amendment 16, a
PSC represents an individual permit’s
portion of the total historical landings of
each regulated species or ocean pout
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stock during FYs 1996–2006 by all
permits, including those in confirmation
of permit history (CPH), that were
eligible to participate in the NE
multispecies fishery as of May 1, 2008.
This date was selected to provide a
recent baseline of eligible permits so
that the PSCs of each permit could be
calculated only once, and then become
fixed. Accordingly, if a permit is
cancelled after May 1, 2008, its historic
landings between FYs 1996–2006 are
still used to calculate the total landings
by eligible permits, and continue to
effectively reduce the PSC of all
remaining permits.
As noted above, the current
regulations calculate the ACL available
to sector and common pool vessels
based on the cumulative PSCs of each
permit participating in each sector. By
default, if the owner of a particular
permit has not elected to participate in
a sector, that permit is considered to be
participating in the common pool, and
its PSC contributes to the sub-ACL
available to the common pool at large.
Similarly, if a permit or CPH is
cancelled for any reason, that permit or
CPH cannot participate in sectors, or
any fishery, and the PSC is used to
contribute to the sub-ACL available to
the common pool. Thus, the PSCs of
cancelled permits artificially inflate the
PSCs of those permits operating in the
common pool and are not equitably
distributed among the permits
remaining in the fishery.
Under FW 45, the PSC calculations
adopted under Amendment 16 would be
performed yearly based upon valid
permits, including those held in CPH,
that are eligible to participate in the
fishery as of a certain date. To do so, the
PSCs for each stock calculated pursuant
to the process specified in Amendment
16 would be multiplied by a factor of ‘‘1/
PSC of the remaining permits.’’ The
Council provided NMFS with the
authority to specify the date on which
PSCs are calculated each year. To reflect
permits that are renewed by the
beginning of each FY (May 1), and allow
NMFS time to process such renewals,
this action proposes to recalculate PSCs
on June 1 of each year, unless another
date is specified by the RA. These
recalculated PSCs would be used to
calculate ACEs for each sector during
the following FY. For example, if a PSC
is calculated on June 1, 2011, that PSC
will affect sector ACE for the 2012 FY
that begins on May 1, 2012. This
provision would mean that each
permit’s PSC may increase on a yearly
basis to reflect its higher portion of the
historic landings of each regulated
species and ocean pout stock due to the
removal of the landings histories of any
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permits that were cancelled by June 1 of
each year. On or about July 1 of each
year, NMFS would inform permit
holders of updated PSCs. If this measure
is approved, the RA would recalculate
PSCs for each permit using valid
permits as of May 1, 2011, to update
PSCs for FY 2011 and reflect permits
cancelled through FY 2010.
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Operations Plan Requirements
Amendment 16 specified that sectors
must submit final rosters, proposed
operations plans, and associated
environmental analyses by September 1,
so that NMFS could review such
documents as part of the process to
approve sector operations for the
following FY. NMFS extended this
deadline in 2009 to provide more time
for vessel owners to decide whether to
join sectors for FY 2010. Based on
industry input, NMFS requested that the
Council formally integrate such
flexibility into the current regulations as
part of FW 45. Thus, NMFS proposes to
require sectors to provide preliminary
rosters and proposed operations plans
by September 1, but to submit final
rosters by December 1. Draft rosters by
September 1, and final rosters by
December 1, provide NMFS with the
information it needs to review or
conduct environmental analyses
associated with draft sector operations
plans, while allowing vessel owners
additional time to decide whether to
participate in sectors, or which sector to
join during the following FY.
Sector Exemptions
Amendment 16 defined several
measures for which sectors cannot
request an exemption. These include
year-round closure areas, permitting
restrictions, gear restrictions designed to
reduce impacts to habitat, and reporting
requirements. Amendment 16
specifically noted that sectors could
request an exemption from the DAS
reporting requirements, as sectors were
universally exempted from the NE
multispecies DAS restrictions. As part
of public comments received on the
proposed rule to implement
Amendment 16 (December 31, 2009; 74
FR 69382), several members of the
public requested that NMFS exempt
sector vessels operating west of 72° 30′
W. long. (i.e., Shinnecock Inlet, NY) and
using larger mesh in the monkfish
fishery from the Amendment 16
dockside/roving monitoring
requirements. This requirement was
based on the argument that regulated
species are rarely encountered in waters
south of New York, particularly when
using the large mesh required in the
monkfish fishery. NMFS disapproved
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this request based on the Amendment
16 requirements to monitor all sector
trips.
Similar concerns were raised during
the final meeting to approve measures
for FW 45. To reduce dockside/roving
monitoring costs, especially due to
infrequent landings of regulated species
in more southerly ports, some
individuals sought to limit the
geographic scope of dockside/roving
monitoring requirements, or exempt
vessels landing in particular ports from
the dockside/roving monitoring
requirements. FW 45 proposes to
address these concerns by specifically
removing dockside/roving monitoring
requirements from the list of reporting
requirements at § 648.87(c)(2)(i). This
would enable sectors to request
exemptions, or at least partial
exemptions, from the dockside/roving
monitoring requirements to minimize
monitoring costs for sector trips
targeting monkfish in southern waters,
for example.
At-Sea or Electronic Monitoring
Requirements
Amendment 16 currently requires that
sectors develop and pay for an at-sea or
electronic monitoring program starting
in FY 2012. This requirement was
intended to provide sufficient
information to accurately monitor
landings and discards of regulated
species and ocean pout by sector
vessels, while allowing sectors 2 years
to develop such a program on their own.
As noted above, members of the fishing
industry and the Council are concerned
about the high cost of at-sea and
electronic monitoring requirements.
Because of the costs associated with
sectors, including costs to join a sector,
the Council was concerned that
imposing additional monitoring costs on
the industry, particular shortly after the
transition to sector management and
before many of the currently overfished
stocks rebuild enable higher ACLs to be
specified, would reduce profitability
and result in making the sector system
an economic failure. Therefore, FW 45
would delay the industry’s
responsibility for developing and paying
for an at-sea or electronic monitoring
program by 1 year. Unless the Council
further revises this provision, sectors
would be responsible for developing
and paying for such a program
beginning in FY 2013.
During the deliberation of this
provision, NMFS expressed concern
about the Council’s reliance upon
NMFS funding to fully support a
provision required by the FMP,
particularly the specific at-sea or
electronic monitoring coverage levels in
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11871
Amendment 16. Because NMFS’
funding is not guaranteed, and depends
upon Congressional appropriations, it is
likely that funding levels will fluctuate
on a yearly basis and may not be
sufficient to fully fund the dockside/
roving monitoring coverage
requirements in the FMP. Thus, NMFS
indicated that this measure may not be
approvable as part of FW 45.
12. Authorization of New Sectors
FW 45 would authorize five new
sectors. These sectors are described in
Section 4.2.1 of the FW 45 EA, and
include the State of Maine Permit
Banking Sector, the State of Rhode
Island Permit Bank Sector, the State of
New Hampshire Permit Bank Sector, the
Commonwealth of Massachusetts Permit
Bank Sector, and the Sustainable
Harvest Sector III. All operational
aspects of these sectors would be
specified in their annual operations
plans, as submitted to NMFS. Most of
these sectors are proposed to be used for
the primary purpose of leasing ACE to
other sectors. Details of these operations
plans are expected to be proposed in a
parallel rulemaking to be published in
the Federal Register soon, as noted
above. If approved, each of these sectors
must comply with the existing sector
provisions, unless otherwise exempted
by a future action. The Council is
currently considering specifically
exempting State-funded and -operated
permit banks from several of the
existing sector provisions, including the
minimum size requirement for sectors
originally established under
Amendment 16, through a separate
rulemaking being developed by the
Council. Public comment will be
solicited separately on that action.
13. Measures for FY 2011 Under RA
Authority
The FMP provides authority for the
RA to implement certain types of
management measures for the common
pool fishery, the U.S./Canada
Management Area, and Special
Management Programs, as described
further below. This proposed rule
includes a description of measures that
may be considered by the RA for
implementation in FY 2011 for these
components of the groundfish fishery,
in order to provide an opportunity for
the public to comment on whether such
measures are appropriate. Although
these measures are not proposed by the
Council for implementation through FW
45, this proposed rule makes the public
aware of measures under consideration
by the RA, under the authority of the
FMP. It also enables the public to
comment on such measures in the
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Federal Register / Vol. 76, No. 42 / Thursday, March 3, 2011 / Proposed Rules
context of the measures proposed in FW
45, that, if approved, would also be
implemented for FY 2011. The RA may
implement measures that differ from the
measures described below if, based on
current information, such measures are
necessary to conform to the
requirements of the FMP. However,
NMFS does not anticipate the measures
that would be implemented will be
substantially different than those
described below. The measures
implemented through RA authority for
FY 2011 will be implemented through
the FW 45 final rule, or through a
separate final rule, if necessary, due to
the availability of relevant data or the
timing of FW 45.
The FW 44 final rule implemented RA
authority to alter common pool trip
limits at § 648.86(o). If the RA projects
that the catch of any NE multispecies
stock allocated to common pool vessels
will exceed the pertinent sub-ACL,
NMFS may implement or adjust
possession and trip limits in order to
prevent exceeding the common pool
sub-ACL. Table 16 provides a summary
of the trip limits that are the default trip
limits in effect if the RA takes no action
to modify such limits, as well as a
summary of trip limit modifications that
occurred during FY 2010, and potential
starting trip limits that would be in
effect for FY 2011. These potential trip
limits were developed after considering
changes to the 2011 common pool subACLs and sector rosters, catch rates of
these stocks during FY 2010, price of
fish during FY 2010, bycatch
considerations, the potential for
differential DAS counting during FY
2011, and other available information.
Specifically, compared to the FY 2010
sub-ACLs, FY 2011 sub-ACLs (see Table
5) would increase for SNE/MA
yellowtail flounder (69 percent), GB cod
(25 percent), CC/GOM yellowtail
flounder (21 percent), white hake (16
percent), GOM cod (6 percent),
American plaice (9 percent), witch
flounder (45 percent), GB winter
flounder (8 percent), redfish
(10 percent), and Atlantic halibut
(10 percent). Decreased catch limits
compared to FY 2010 are expected for
GB haddock (¥24 percent), GB
yellowtail flounder (¥18 percent),
pollock (¥16 percent), and GOM
haddock (¥5 percent). Although the
slow catch rate of SNE/MA yellowtail
flounder by common pool vessels in FY
2010 suggests that trip limits could be
increased substantially to increase the
catch of this stock in FY 2011, due to
concerns over the potential of increased
SNE/MA yellowtail flounder trip limits
to increase the bycatch and discard of
SNE/MA winter flounder (a stock that
cannot be possessed by any vessel to
help ensure this stock rebuilds
according to the approved rebuilding
program), only a small increase in the
trip limit for this stock is proposed at
this time. For stocks that include a range
of potential trip limits in Table 16, a
final trip limit would be specified in the
final rule for this action based upon
public comment. NMFS is requesting
public input on common pool trip limits
for FY 2011.
TABLE 16—DEFAULT, FY 2010, AND POTENTIAL FY 2011 TRIP LIMITS FOR THE COMMON POOL
Default limit in regulations
FY 2010 limit implemented
Potential FY 2011 limit
GOM cod .................
800 lb (362.9 kg) per DAS, up to 4,000
lb (1,818.2 kg) per trip.
GOM haddock .........
2,000 lb (907.2 kg) per DAS, up to
20,000 lb (9,072 kg) per trip.
unrestricted ...........................................
200 lb (90.7 kg) per DAS, up to 1,000
lb (453.6 kg) per trip; reduced to 100
lb (45.4 kg) per DAS, up to 1,000 lb
(453.6 kg) per trip.
no change to default limit .....................
500 lb (226.8 kg) per DAS, up to 2,000
lb (907.2 kg) per trip.
GB cod ....................
1,000 lb (453.6 kg) per trip ..................
GB haddock ............
unrestricted ...........................................
10,000 lb (4,535.9 kg) per trip .............
GOM winter flounder
GB winter flounder ..
unrestricted ...........................................
unrestricted ...........................................
250 lb (113.4 kg) per DAS, up to 1,500
(680.4 kg) per trip.
unrestricted ...........................................
250 lb (113.4 kg) per DAS, up to 1,500
(680.4 kg) per trip.
1,000 (453.6 kg)—1,500 (680.4 kg) per
trip.
SNE/MA yellowtail
flounder.
250 lb (113.4 kg) per DAS, up to 1,500
(680.4 kg) per trip.
250 lb (113.4 kg) per trip .....................
started at 5,000 lb (2,268 kg); reduced
to 1,000 lb (453.6 kg) per trip.
250 lb (113.4 kg) per DAS, up to 1,500
(680.4 kg) per trip.
started at 2,500 lb (1,134 kg) per trip;
reduced to 1,000 lb (453.6 kg) per
trip; reduced again to 100 lb (45.4
kg) per trip.
250 lb (113.4 kg) per DAS, up to 1,500
(680.4 kg) per trip.
2,000 lb (907.2 kg) per DAS, up to
20,000 lb (9,072 kg) per trip.
750 lb (340.2 kg)—1,000 lb (453.6 kg)
per trip.
7,500 lb (3,402 kg)—10,000 lb
(4,535.9 kg) per trip.
250 lb (113.4 kg) per trip.
1,000 lb (453.6 kg) per trip.
CC/GOM yellowtail
flounder.
GB yellowtail flounder.
American plaice ......
Pollock .....................
Witch flounder .........
unrestricted ...........................................
1,000 lb (450 kg) per DAS; up to
10,000 lb (4,500 kg) per trip.
unrestricted ...........................................
White hake ..............
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Stock
unrestricted ...........................................
Redfish ....................
unrestricted ...........................................
Amendment 16 implemented a
provision that AMs for the common
pool fishery will be triggered for FY
2011 if the catch in FY 2010 exceeds the
pertinent common pool sub-ACL
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18:01 Mar 02, 2011
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unrestricted ...........................................
unrestricted ...........................................
130 lb (59 kg) per trip; reduced to pos- 250 lb (113.4 kg) per trip.
session prohibition.
Started at 2,000 lb (907.2 kg) per 1,000 lb (453.6 kg)—1,500 lb (680.4
DAS; up to 10,000 lb (4,500 kg) per
kg) per trip.
trip; reduced to 100 lb (45.4 kg) per
DAS; up to 500 lb (226.8 kg) per trip.
unrestricted ........................................... unrestricted.
(§§ 648.90(a)(5)(i)(A) and 648.82(n)).
Specifically, the FMP requires that the
DAS counting rate during FY 2011 be
adjusted if the catch of the relevant
stocks by common pool vessels exceeds
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250 lb (113.4 kg) per DAS, up to 1,500
(680.4 kg) per trip—500 lb (226.8
kg), up to 2,000 (907.2 kg) per trip.
unrestricted.
unrestricted.
Fmt 4701
Sfmt 4702
the pertinent common pool groundfish
sub-ACLs during FY 2010. Based on
current information, the common pool
catch of witch flounder during FY 2010
will exceed the witch flounder sub-ACL
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specified for the common pool (25 mt)
by 20 percent or more. As an example,
if the percent of the common pool subACL for witch flounder caught at the
end of FY 2010 is determined to be 124
percent, the required differential DAS
rate would be 1.2 where historically
witch flounder are caught. The
geographic areas for which the
differential DAS rate would apply are
defined for witch flounder by the FMP
as the Offshore GOM Differential DAS
Area, the Offshore GB Differential DAS
Area, and the Inshore GB Differential
DAS Area, with coordinates specified at
§ 648.82(n)(1)(i). The differential DAS
rate would not apply to the Inshore
GOM Differential DAS Area or the SNE/
MA Differential DAS Area, provided
only the witch flounder ACL is
exceeded, and AMs are not required for
a stock with predominantly inshore
catch. The differential DAS would apply
to all Category A trips taken by common
pool vessels in the applicable areas.
Category A DAS would be charged at a
rate of 28.8 hr for every 24 hr fished (1.2
times 24-hr DAS counting), for the time
spent fishing in the applicable DAS
counting area (noted above) based upon
the first VMS position into the
applicable differential DAS counting
area, and the first VMS position outside
of the applicable differential DAS
counting area. If the catch of other
stocks such as GOM cod exceed their
respective sub-ACLs, additional
differential DAS restrictions or an
adjustment to the DAS allocation may
be required. NMFS provides an estimate
of the status of the common pool catch
to the public through the following
Internet address: https://
www.nero.noaa.gov/ro/fso/reports/
common_pool/
Common_Pool_Summary.html.
Under authority granted by the FMP
(§ 648.85(a)(3)(iv)(D)), the RA may
implement rules to optimize the harvest
of the transboundary stocks managed
under the Understanding. Pursuant to
this authority, NMFS is considering
postponing the opening of the Eastern
U.S./Canada Area for non-sector
(common pool) vessels fishing with
trawl gear in FY 2011 from May 1, 2011,
to August 1, 2011. This action would
prevent trawl fishing in the Eastern
U.S./Canada Area during the time when
cod bycatch is likely to be very high,
and prolong access to this area in order
to maximize the catch of available cod,
haddock, and yellowtail flounder, as
well as other valuable stocks such as
winter flounder. This action would not
affect valid members of sectors fishing
with trawl gear in the Eastern U.S./
Canada Area, because such vessels are
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subject to additional restrictions on
catch as members of a sector. Industry
members believe that sector restrictions
provide sufficient incentives for vessels
to fish in a manner that optimizes catch,
and that such incentives are not existent
under common pool regulations. To
further constrain fishing mortality on
GB cod, NMFS may limit the common
pool vessels fishing with non-trawl gear
in the Eastern U.S./Canada Area prior to
August 1, 2011, to a cod catch of 5
percent of the Eastern GB cod TAC, or
10 mt of cod.
The RA has the authority to determine
the allocation of the total number of
trips into the Closed Area II Yellowtail
Flounder/Haddock SAP based on
several criteria, including the GB
yellowtail flounder TAC and the
amount of GB yellowtail flounder
caught outside of the SAP. As
implemented in 2005 by FW 40B (June
1, 2005; 70 FR 31323), zero trips to this
SAP should be allocated if the available
GB yellowtail flounder catch is
insufficient to support at least 150 trips
with a 15,000-lb (6,804-kg) trip limit
(i.e., 150 trips of 15,000 lb (6,804 kg)/
trip, or 2,250,000 lb (1,020,600 kg) total.
This calculation takes into account the
projected catch from the area outside
the SAP. Based on the groundfish subACL of 2,125,256 lb (964,016 kg), even
if the projected catch from outside the
SAP area is zero, there is still
insufficient GB yellowtail flounder
available to allow the SAP to proceed
(i.e., 2,125,256 lb (964,016 kg) available
< 2,250,000 (1,020,600 kg) needed).
Therefore, based on existing authority,
this proposed rule would allocate zero
trips to the CA II Yellowtail Flounder
SAP for FY 2010, based on a
determination that the available TAC of
GB yellowtail flounder is insufficient to
support a minimum level of fishing
activity within the Closed Area II
Yellowtail Flounder/Haddock SAP. This
means that vessels could fish in this
SAP, but would not be allowed to fish
any trips using flounder nets, as defined
in the regulations at
§ 648.85(a)(3)(iii)(B), and would instead
need to fish with a haddock separator
trawl, a Ruhle trawl, or hook gear.
14. Corrections and Clarifications
This proposed rule would also correct
a number of inadvertent errors,
omissions, and ambiguities in existing
regulations in order to ensure
consistency with, and accurately reflect
the intent of previous actions under the
FMP, or to more effectively administer
and enforce existing provisions
pursuant to the authority provided to
the Secretary of Commerce in section
305(d) of the Magnuson-Stevens Act.
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11873
The following proposed measures are
listed in the order in which they appear
in the regulations, and indicate the
genesis of the regulation and/or the
cause of the regulatory error.
Amendment 16 requires the owner or
operator of any vessel issued a limited
access NE multispecies permit fishing
on either a common pool (i.e., nonsector) or a sector trip to declare its
intent to fish within one or more of the
NE multispecies broad stock areas
(BSAs) and provide the vessel trip
report (VTR) serial number for the first
page of the VTR for that particular trip
via VMS prior to leaving port at the start
of a fishing trip. In addition, a vessel
fishing in more than one BSA per trip
must submit a VMS catch report
detailing the amount of each species
retained from each BSA fished prior to
crossing the VMS demarcation line
upon its return to port. Because the VTR
serial number can only be submitted by
a VMS catch report, for trips into more
than one BSA, these regulations require
duplicative reporting requirements. This
action would modify the timing
requirements for the submission of the
VMS catch report in § 648.10(k)(1) to
require all NE multispecies limited
access vessels, regardless number of
broad stock areas fished, to submit the
VMS catch report listing the VTR serial
number applicable for that trip prior to
crossing the VMS demarcation line
upon its return to port following each
fishing trip on which regulated species
were caught.
To further clarify the administration
and enforcement of dockside/roving
monitoring provisions originally
implemented under Amendment 16 and
revised by this action, NMFS is
proposing to add a prohibition at
§ 648.14(k)(18)(i)(D) to state that, if the
offloads of a particular trip are assigned
to be monitored by a dockside/roving
monitor, the vessel cannot offload its
catch until the assigned dockside/roving
monitor arrives at the designated
offloading site specified by the vessel
owner or operator.
The regulations at § 648.82(a)(2)
currently state that a vessel issued a NE
multispecies limited access permit may
not call into the DAS program or fish
under a DAS, if such vessel carries
passengers for hire for any portion of a
fishing trip. This provision was first
implemented under FW 33 (April 24,
2000; 65 FR 21658) to close a perceived
loophole that could have allowed a
vessel fishing under a NE multispecies
DAS to possess and land fish smaller
than the minimum fish size specified for
commercial vessels and to sell their
catch from such operations. In a similar
manner, this action proposes to expand
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this provision to apply to vessels fishing
on a sector trip or under the limited
access NE multispecies Small Vessel
Category or Handgear A permits.
In §§ 648.87(b)(1)(i)(A) and
648.90(a)(4)(iii)(E)(2), the proposed
regulations would add the term
‘‘permits’’ to the phrase ‘‘vessels
participating in sectors’’ to reflect that
vessels issued permits, including those
held in CPH, can participate in sectors.
To provide more flexibility to sectors,
Amendment 16 allowed the transfer of
ACE between sectors, and also
permitted carrying over ACE from one
FY to the next. With the exception of GB
yellowtail flounder, a sector may carryover up to 10 percent of its unused ACE
for each stock into the following FY.
The final rule implementing
Amendment 16 did not specify whether
the 10 percent carry-over for each stock
is to be derived from the unused portion
of a sector’s total available ACE,
including ACE acquired from another
sector through an ACE transfer, or from
the unused amount of the sector’s
originally allocated ACE based upon the
PSCs of vessels participating in that
sector.
The Council did not intend these
provisions to allow a sector to exceed its
ACE. To clarify how the ACE carry-over
provision will be applied, this action
proposes to refine the regulations at
§ 648.87(b)(1)(i)(C) to state that a NE
multispecies sector may carry-over up to
10 percent of its allocated ACE for each
stock, with the exception of GB
yellowtail flounder, into the following
FY, provided the sector has not
harvested more than 90 percent of its
original ACE allocation for that stock by
the end of the FY. This provision is
intended to limit the applicability of
ACE carry-over to only the ACE
allocated to a sector and not the ACE
acquired from another sector, as part of
an ACE transfer. Because the Council
did not specifically state whether the
ACE carry-over provision applies to
allocated or total available ACE, NMFS
is specifically seeking public input on
this measure.
In addition to the proposed revisions
to the calculation of PSCs noted above,
this proposed rule would revise the
regulatory text describing the
calculation of PSCs at
§ 648.87(b)(1)(i)(E)(1) and (b)(1)(i)(E)(2).
These revisions would not revise the
manner in which the PSCs are
calculated, as adopted in Amendment
16, but rather they would clarify and
more accurately reflect the processes
that were, and continue to be, applied
to implement such calculations.
Specifically, this rule would clarify that
the landings histories of any limited
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access NE multispecies permit,
including those that were put into CPH,
and those of an open access NE
multispecies handgear permit that
eventually qualified for, and resulted in,
the issuance of a limited access NE
multispecies Handgear A permit during
FYs 1996 through 2006 would be used
to calculate the PSCs for each valid
permit as of June 1 each year. In
addition, these revisions would provide
an example of the landings of regulated
species and ocean pout that would not
be used to calculate PSC; namely, any
landings of yellowtail flounder by
scallop vessels operating under a
scallop DAS. Finally, the PSC that
results from such a calculation would be
specified as the PSC for each stock.
This proposed rule includes revisions
to the regulatory text at
§§ 648.87(b)(1)(iii)(C) and (viii) that
provide for the transfer of a sector’s ACE
for up to 2 weeks into the subsequent
FY, and the processing of such ACE
transfers by NMFS for up to 61 days.
These provisions were originally
included in Amendment 16 to provide
an opportunity for sectors to participate
in the ACE Transfer Program to cover
any ACE overages that the sector
accrued at the end of the FY. These
regulatory provisions are dependent
upon the completion of NMFS’
evaluation of year-end sector catch,
including sector ACE overages, and may
not account for the timing of NMFS’
year-end evaluation process. Therefore,
to account for additional time for this
process, if necessary, the phrase ‘‘unless
otherwise instructed by NMFS’’ is being
added to reference to the 2-week and 61day deadlines in the regulatory text.
Request for Comments
The public is invited to comment on
any of the measures proposed in this
rule. NMFS is especially interested in
receiving comments on several
proposed measures for which the
agency has concern, particularly the
proposed measure to restrict vessels
issued either a Handgear A or Handgear
B permit that are issued a LOA to fish
south of the GOM Regulated Mesh Area
from fishing within the GOM Regulated
Mesh Area for the duration of the LOA;
the proposed August 1, 2011, delayed
opening of the Eastern U.S./Canada
Area for common pool vessels fishing
with trawl gear; and the proposed initial
FY 2011 common pool trip limits for
certain stocks.
Classification
Pursuant to section 304 (b)(1)(A) of
the Magnuson-Stevens Act, the NMFS
Assistant Administrator has determined
that this proposed rule is consistent
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with FW 45 to the FMP, other
provisions of the Magnuson-Stevens
Act, and other applicable law, subject to
further consideration after public
comment. Further, pursuant to section
303(c) of the Magnuson-Stevens Act, the
Council has deemed this proposed rule
as necessary and appropriate to
implement FW 45.
This proposed rule has been
determined to be not significant for
purposes of Executive Order 12866.
An IRFA, consistent with the
Regulatory Flexibility Act (RFA)
analysis contained in FW 45 and the
preamble to this proposed rule, has been
prepared, as required by section 603 of
the RFA. The IRFA describes the
economic impact this proposed rule, if
adopted, would have on small entities.
A description of the action, why it is
being considered, and the legal basis for
this action are contained in FW 45, and
in the preamble to this rule. A summary
of the analysis contained in FW 45
follows. In this analysis, the baseline
(no-action alternative) is the set of
measures that were in place during FY
2010 (i.e., the measures implemented
under Amendment 16 and FW 44).
Tables and sections that are referenced
in this IRFA refer to those contained in
the EA developed for FW 45. A copy of
FW 45 is available from the Council (see
ADDRESSES).
Description of and Estimate of the
Number of Small Entities to Which the
Proposed Rule Will Apply
The measures proposed in FW 45
would affect recreational anglers and
any vessel issued a limited access NE
multispecies permit, an open access NE
multispecies Handgear B permit
(Handgear B permit) or charter/party
permit, or a LAGC scallop permit. In
addition, because this action would
affect the dockside/roving and at-sea or
electronic monitoring program
requirements and require dockside
monitors to inspect fish holds, this
action would also affect any entity
intending to provide dockside/roving or
at-sea or electronic monitoring services.
As of December 20, 2010, the maximum
number of small fishing entities (as
defined by the Small Business
Administration (SBA)) that may be
affected by this action would be 3,935
entities. The potentially affected entities
include 1,144 limited access NE
multispecies DAS permit holders; 133
limited access NE multispecies
Handgear A (Handgear A) permit
holders; 11 limited access NE
multispecies Small Vessel Exemption
(Category C) permit holders; 1,156 open
access NE multispecies Handgear B
(Handgear B) permit holders; 824 open
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access NE multispecies charter/party
permits; and 667 Atlantic sea scallop
LAGC permits. In addition, it is
expected that the five entities currently
providing dockside/roving monitoring
and at-sea or electronic monitoring
services would continue to do so in FYs
2011 and 2012, and would be affected
by this action. It is likely that the actual
number of small fishing entities affected
by this action would be much smaller.
For instance, information contained in
Section 10.11.2 of the FW 45 EA
indicates that only 397 vessels had
reported any sales of regulated species
and ocean pout as of December 2010,
including 18 Handgear A vessels, 50
Handgear B vessels, and 329 other
vessels issued limited access NE
multispecies DAS permits. Further, only
18 entities conducted party/charter
operations in the proposed GOM Cod
Spawning Protection Area proposed in
this action, according to that analysis.
Finally, it is difficult to estimate the
number of private recreational anglers
that may be affected by this action, as
the proposed GOM Cod Spawning
Protection Area is too small to
accurately determine the number of
anglers that fish in this area based on
available data.
It is important to note that past fishing
activity and enrollment in sectors may
not be an accurate predictor of future
fishing activity. In particular, it is
possible that revisions to measures
affecting both the Handgear A and
Handgear B fisheries may increase
participation by vessels issued such
permits. In addition, as of December 1,
2010, 835 permits had elected to join a
sector during FY 2011, as determined
through the submission of sector rosters
to NMFS, indicating that 453 permits
would be enrolled in the common pool.
However, vessels may withdraw from
sectors until the beginning of FY 2011
on May 1, 2011. Therefore, because
participation in sectors is voluntary, the
number of vessels that will actually
participate in sectors during FY 2011
and future years is likely to fluctuate
based upon whether joining a sector or
fishing under common pool measures
offers the greater economic advantage to
each individual vessel.
The SBA considers commercial
fishing entities (NAICS code 114111) to
be small entities if they have no more
than $4 million in annual sales, while
the size standard for charter/party
operators (part of NAICS cod 487210) is
$7 million in sales. Based on 2005–2007
average conditions, median gross sales
by commercial fishing vessels were just
over $200,000, and no single fishing
entity earned more than $2 million. For
regulated charter/party operators, the
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median value of gross receipts from
passengers was just over $9,000, and did
not exceed $500,000 in any year during
2001 to 2007. Although multiple vessels
may be owned by a single owner,
available tracking of ownership is not
readily available to reliably ascertain
affiliated entities. Therefore, for the
purposes of this analysis, each
permitted vessel is treated as a single
small entity and is determined to be a
small entity under the RFA.
Accordingly, there are no differential
impacts between large and small entities
under this proposed rule.
Economic Impacts of the Proposed
Action
The economic impacts of each
proposed measure is discussed in more
detail in Sections 8.4, 9.4, and 10.11 of
the FW 45 EA. The following
summarizes the economic impacts
contained in those sections for each
proposed measure.
Revised Status Determination Criteria
and Rebuilding Programs
Economic impacts resulting from the
proposed revisions to status
determination criteria for pollock and
the rebuilding period for GB yellowtail
flounder are primarily reflected in the
ACLs specified for these stocks during
future years, as discussed further below.
However, an estimate of the present
value of the potential revenues of each
rebuilding strategy considered for GB
yellowtail flounder under FW 45 was
developed. This analysis indicates that
the proposed rebuilding strategy would
result in a U.S. catch that is expected to
achieve a present value of about $70.8
million, assuming a 5-percent yearly
discount rate over the course of a 10year period (i.e., through 2020).
ACLs
The total potential revenue of the
proposed FY 2011 and 2012 ACLs was
estimated to be approximately $187.8
million and $181 million using FY 2010
prices, respectively. However, this
estimate assumes that the entire ACL for
each stock will be caught, meaning there
are no discards and the fishery is using
gear that is perfectly selective. To more
accurately evaluate the expected
economic impacts of ACLs proposed in
this action, the catch rate for each stock
as of October 16, 2010, was calculated
and projected forward for the rest of the
FY (i.e., through April 30, 2011) and
through FY 2012. Resulting revenues
were calculated, after first deducting an
estimate of discards. This estimate
produced expected commercial
revenues of $79.8 million in FY 2011
and $72.5 million in FY 2012.
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11875
Compared to the no action alternative
(i.e., maintaining the FY 2011 and 2012
ACLs implemented under FW 44), the
proposed ACLs would reduce revenues
by $0.4 million in FY 2011 and by $9.4
million in FY 2012. Assuming the
current trend in fishing revenues
observed during the first half of FY 2010
continues, expected groundfish
revenues would be about $83.7 million
in FY 2010. Therefore, the proposed FY
2011 revenues would be about $4
million lower than projected FY 2010
revenues (about 5 percent of groundfish
sales, or $12,000 per vessel), while
proposed FY 2012 ACLs would produce
revenues that are about $11.2 million
lower than those expected in FY 2010.
These estimates suggest that sectors may
be able to obtain higher use rates and,
therefore, landings of several stocks
compared to landings from previous
FYs.
This evaluation incorporates the
potential impacts associated with the
U.S./Canada Management Area TACs,
incidental catch TACs, and the
proposed allocation of yellowtail
flounder to the scallop fishery, as each
of these components is part of the
available ACL for applicable stocks. As
a result, no additional impacts beyond
those described above are expected for
these provisions. However, separate
analysis was conducted to provide more
detailed information regarding the
potential specific impacts of these
provisions, as detailed further below.
The primary reason for the difference
in the expected revenue under this
proposed action and the no action
alternative or the expected FY 2010
revenues is the lower ACLs of GB
haddock and GB yellowtail that result
from the aging of the very large 2003
year class of GB haddock and the
reduced ACL for GB yellowtail flounder
that is necessary to rebuild this stock
under the proposed rebuilding program.
These reduced ACLs are sufficient to
overcome any gains resulting from the
updated status and associated increased
ACLs for pollock proposed under this
action. However, because the FW 45 EA
applied the 2010 catch rates to the lower
FY 2011 and 2012 sub-ACL for GB
haddock, it is possible that the adverse
economic impacts specified in the FW
45 EA were overestimated. Rather than
assuming that the 2010 catch rate for
this stock would continue into future
FYs, as was done in the FW 45 EA, it
is reasonable to assume that the fishery
is capable of catching the same amount
of GB haddock in future FYs. If the same
amount of GB haddock is caught in FYs
2011 and 2012 as is projected based on
observed catch rates so far in FY 2010,
then the realized adverse economic
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impacts of the ACLs proposed in this
action would be less than those
estimated in the FW 45 EA. Given that
GB haddock, pollock, and redfish
(another rebuilt stock) comprise nearly
70 percent of the aggregate groundfish
ACL (41, 18.5, and 10 percent,
respectively), improvements in fishing
selectivity, particularly while fishing for
these stocks, could lead to substantially
higher revenues for the fishery.
Because NMFS is also proposing to
implement a higher FY 2011 GB
yellowtail flounder ACL than that
adopted by the Council in FW 45 based
on the flexibility afforded by the
International Fisheries Agreement
Clarification Act, it is likely that fishing
revenues will be slightly higher in FY
2011 than that analyzed under FW 45
and described above. The revised FY
2011 GB yellowtail flounder sub-ACL
available to the NE multispecies species
based upon the TAC approved by the
TMGC in its February 9, 2011,
conference call is 358 mt (789,255 lb)
higher than the ACL adopted in FW 45.
At $1.34 per pound ($2.95 per kg), this
revised ACL could increase fishing
revenues by $1,057,602 in FY 2011.
Because GB yellowtail flounder are also
caught in conjunction with other
regulated species, it is likely that
revenues will be even higher based
upon additional revenues from landing
these other species.
Economic impacts of these ACLs on
the fishery at large may not be
representative of impacts to individual
vessels. Over the past decade, there has
been a significant amount of
consolidation in this fishery in response
to the severely depleted state of the
majority of the groundfish stocks and to
changes in management measures. In
particular, the recent implementation of
ACLs, AMs, and an expanded use of
sectors under Amendment 16 has
affected fishing patterns in ways that are
not yet determined. For example, sector
measures were intended to provide a
mechanism for vessels to increase the
economic efficiency of fishing
operations. Reasons why fewer vessels
have fished thus far may be related to
owners with multiple vessels fishing
fewer vessels, or vessel owners or
sectors using quota differently and
waiting to fish later in the fishing year
to maximize revenue in response to
some of the efficiencies gained through
the implementation of sector measures
in 2010. It is also likely that some
vessels that have not landed groundfish
have received revenue from leasing their
groundfish allocation or have been
fishing in other fisheries. Thus, fewer
vessels are actively fishing for and
landing regulated species and ocean
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pout stocks, with 10 percent of the
fishing vessels earning more than half of
the revenues from such stocks since
2005, leading to a seemingly continuing
trend of consolidation in the fishery.
However, as alluded to above, this trend
began before the implementation and
expansion of the sector program, and
based on limited data available to date,
the trend is not significantly out of
proportion to fishing years prior to the
implementation of Amendment 16.
Based upon concerns over consolidation
raised by the public during the
development of Amendment 16, the
Council is currently working on a white
paper regarding fleet diversity and
accumulation limits, and has agreed to
develop an amendment to the FMP to
address concerns identified.
U.S./Canada Management Area TACs
The economic impacts to the
groundfish fishery of specification of the
U.S./Canada Management Area TACs
are difficult to predict due to the many
factors that may affect the level of catch.
This includes the potential that
inseason actions necessary to ensure
that the U.S./Canada Management Area
TACs for Eastern GB cod, Eastern GB
haddock, and GB yellowtail flounder are
not exceeded, including area closures,
trip limit adjustments, and gear
restrictions, may affect the catch of
other stocks caught in this area and the
timing of when such catch can be
landed. The amount of fish landed and
sold would not be equal to the sum of
the proposed TACs for these stocks, but
would be reduced as a result of discards
(for the common pool), and may be
further reduced by limitations on access
to stocks that may result from the
associated fishing rules. Reductions to
the value of the fish may result from
landing large amounts of fish in a short
duration following the start of the FY,
and the resulting potential impact on
markets. It is likely that, because the
proposed FY 2011 TACs for these stocks
are substantially lower compared to the
TACs for FY 2010, the proposed action
would result in reduced overall revenue
from the U.S./Canada Management
Area. Some of this reduction in revenue
could be mitigated if the selectivity of
the fishery increases such that vessels
can minimize the catch of Eastern GB
cod and increase catch of abundant
resources of Eastern GB haddock.
An evaluation of the specific impacts
of the proposed FY 2011 TACs was
conducted using FY 2009 prices and
discard ratios. It is important to note
that this evaluation is not directly
comparable to the evaluation of the
impacts of proposed ACLs discussed
above, due to the use of lower market
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prices observed during FY 2009 and the
likely higher discard rates recorded
compared to preliminary estimates from
FY 2010 to date. In addition, these
impacts are not cumulative, and should
not be added to the impacts estimated
for the proposed ACLs, as noted above.
Nonetheless, this analysis suggests that
the proposed FY 2011 U.S./Canada
Management Area TACs may result in
revenue that is between 48 to 67 percent
less than that recorded for FY 2009.
Because this analysis used conservative
prices from FY 2009, the expected
reduction in revenue would likely be
less than reported here. In addition,
because NMFS is proposing a higher FY
2011 GB yellowtail flounder ACL than
that adopted by the Council in FW 45,
the resulting reduction in fishing
revenue is expected to be less than that
analyzed in FW 45, as discussed above.
Overall, the primary cause for reduced
revenue is the substantially lower
proposed FY 2011 TACs compared to
those specified for FY 2010 (41 percent
lower for Eastern GB cod and 20 percent
lower for Eastern GB haddock). The
amount of haddock that has been
harvested from the U.S./Canada
Management Area has been increasing,
but it is unknown whether this trend
will continue. The delayed opening of
the Eastern U.S./Canada Area for
common pool vessels using trawl gear
that is proposed in this action and
described below would likely result in
increased revenue from the Eastern
U.S./Canada Area, because it is likely to
prolong the time period during which
the area is open and enable a higher
overall catch of all species, particularly
GB haddock. Similarly, the proposed
closure of the CA II Yellowtail
Flounder/Haddock SAP to targeting
yellowtail flounder and the associated
prohibition of the use of flounder nets
in this SAP should reduce the bycatch
of these stocks and increase the harvest
of the available Eastern GB haddock
TAC, prolong the opening of the Eastern
U.S./Canada Area, and result in greater
overall revenue.
Different impacts would likely be
realized by common pool and sector
vessels due to the nature of the
operations of such groups and
applicable regulations. Unlike vessels
operating within the same sector, the
common pool is unable to actively
coordinate fishing operations to
maximize fishing revenue based upon
resource availability and market price.
Therefore, impacts on common pool
vessels will be dependent upon the
overall rate at which available TACs are
caught, and whether any responsive
measures necessary to prevent such
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TACs from being exceeded are triggered.
Further, once the available ACE for a
particular stock is caught, sectors must
cease fishing operations in the entire
stock area. In contrast, while common
pool vessels may be subject to more
restrictive DAS or trip limits in a
particular area, they could continue to
fish in the Western U.S./Canada Area
even after the GB yellowtail flounder
TAC is caught, provided they do not
retain any GB yellowtail flounder.
Yellowtail Flounder Allocations to the
Scallop Fishery
FW 45 would maintain the yellowtail
flounder allocations to the scallop
fishery originally implemented under
FW 44. This allocation to the scallop
fishery recognizes the importance of
yellowtail flounder to the prosecution of
the scallop fishery and allocates most of
the yellowtail flounder that the fishery
is expected to catch if it harvests the
available scallop yield. It also creates an
incentive for scallop fishermen to
reduce bycatch of yellowtail flounder in
order to maximize scallop yield. The
allocation of yellowtail flounder to the
scallop fishery in FYs 2011 and FY 2012
would likely have fewer economic
impacts on the scallop fishery than
those originally estimated in FW 44,
because, with the exception of the
allocation of GB yellowtail flounder to
the scallop fishery in FY 2012 (the
proposed action would provide 93
percent of expected yellowtail flounder
bycatch by the scallop fishery), that
allocation would not constrain scallop
catch based on updated estimates of the
amount of yellowtail flounder necessary
to fully harvest available scallop
resources. However, these updated
projections of expected yellowtail
flounder bycatch by the scallop fishery
are based upon data from FY 2009 that
are considered to be overly optimistic
due to the substantially lower bycatch of
yellowtail flounder, particularly from
the Nantucket Lightship Closure Area,
compared to that observed during
previous FYs. In addition, these
projections are subject to a high degree
of uncertainty, including uncertainty
associated with the size of the yellowtail
flounder stock. Additional detail
regarding the evaluation of the likely
economic impacts to the scallop fishery,
including those resulting from the
proposed yellowtail flounder allocation
to the scallop fishery and expected
scallop catch and the AMs proposed in
that fishery as part of Amendment 15
and FW 22 to the Atlantic Sea Scallop
FMP, are contained in the supporting
EIS and EA developed for those actions,
respectively. Overall, however, it is
expected that the allocation of
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yellowtail flounder to the scallop
fishery represents the greatest overall
benefit to the nation consistent with the
Magnuson-Stevens Act, because it
would reduce the likelihood that scallop
AMs would be triggered due to
excessive catch of yellowtail flounder in
FYs 2011 and 2012 and, therefore, put
far less fishing revenue at risk compared
to other allocation alternatives
considered in FW 45. The economic
impacts of other alternatives considered
for this measure are discussed further
below.
The economic impact of this action on
the NE multispecies fishery in FY 2011
has two components: (1) The primary
revenue reduction due to the forgone
sale of yellowtail flounder, and (2)
secondary revenue reduction as a result
of reduced access to a particular
yellowtail flounder stock area.
Secondary revenue reduction occurs
once a sector’s yellowtail flounder ACE
is caught and that sector is required to
cease fishing in that stock area, or when
the GB yellowtail flounder TAC for
common pool vessels is caught and the
Eastern U.S./Canada Area is closed to
such vessels. At a market price of $1.34
per lb ($2.95 per kg), the primary
revenue reduction in the NE
multispecies fishery associated with the
allocations of GB yellowtail flounder to
the scallop fishery is estimated at
$593,787 and $906,928 for FYs 2011
and 2012, respectively. For SNE/MA
yellowtail flounder allocations to the
scallop fishery, the primary revenue
reduction in the NE multispecies fishery
is estimated at $242,241 and $375,179
for FYs 2011 and 2012, respectively.
The secondary revenue reduction in
the groundfish fishery from yellowtail
flounder allocations to the scallop
fishery were estimated using the ratio of
the value of catch of all species to
yellowtail flounder. In FY 2010, that
ratio was approximately 19 to 1 for GB
yellowtail flounder. At a market price of
$1.34 per lb ($2.95 per kg), the value of
each metric ton of GB yellowtail
flounder to the NE multispecies fishery
is estimated to be $2,954. Accordingly,
for each metric ton of GB yellowtail
flounder that cannot be caught,
approximately $56,130 of revenue from
other species would also be lost due to
the reduction of catch of other species
caught in association with each ton of
GB yellowtail flounder caught. Similar
to the discussion of the economic
impact of the proposed U.S./Canada
Management Area TACs, it is important
to remember that these impacts are not
cumulative, and should not be added to
the impacts estimated for the proposed
ACLs discussed above. Instead, this
discussion provides additional
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information that clarifies the potential
impact of this particular component of
the proposed suite of measures that is
estimated to be captured by the
discussion of the impact of the proposed
ACLs on the NE multispecies fishery. It
is also not appropriate to consider all of
the yellowtail flounder allocated to the
scallop fishery as a ‘‘loss’’ to the
groundfish fishery because the
groundfish fishery does not ‘‘own’’ the
yellowtail flounder. Rather, it is more
accurate to consider the allocations as a
transfer between the two fisheries,
particularly given the long and
documented history of bycatch of
yellowtail flounder in the scallop
fishery and the current requirement that
scallop vessels must land all legal-size
yellowtail flounder.
U.S./Canada Area Measures
This proposed rule would allocate
zero trips to target yellowtail flounder in
the CA II Yellowtail Flounder/Haddock
SAP. This measure would prevent
vessels from accessing the SAP to target
yellowtail flounder with flounder nets,
as defined in the current regulations,
but would not reduce the potential
revenue from the available ACL of
stocks that are caught in this area for
several reasons. First, the measures
implemented under Amendment 16
allow vessels to access the same SAP
area to target GB haddock, a rebuilt
stock whose ACL has not been fully
harvested in recent years, using hook
gear and selective trawl gear such as the
haddock separator trawl and Ruhle
trawl. Secondly, available ACL of GB
yellowtail flounder can also be caught
outside this SAP in either the Eastern
U.S./Canada Area or the Western U.S./
Canada Area. Thus, this measure would
not represent a decrease in opportunity
or revenue from recent years, because
the SAP has not been opened since FY
2004 due to the status of the GB
yellowtail flounder stock.
This action would also delay the
opening of the Eastern U.S./Canada
Area to common pool trawl vessels until
August 1, 2011. This delay has been
requested by the Council and
implemented by NMFS for the past
several FYs to reduce the bycatch of
Eastern GB cod during the summer
months and prolong access to the
Eastern U.S./Canada Area. This measure
attempts to maximize fishing revenues
by increasing the chances that a greater
portion of the available Eastern GB
haddock TAC can be caught without
triggering the premature closure of the
Eastern U.S./Canada Area to avoid
exceeding the common pool TAC of
Eastern GB cod before the end of FY
2011 on April 30, 2012. As noted above
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in the description of the economic
impacts of the proposed U.S./Canada
Management Area TACs, the expected
benefits of this measure depend upon
the selectivity of the fishery and other
factors that are difficult to predict, but
will still likely be reduced compared to
those observed during FY 2010 due to
the reduced TAC of Eastern GB cod. The
potential 2011 common pool trip limits
listed in Table 14 should increase the
likelihood that the fishery will fully
harvest, but not exceed, the 2011
common pool sub-ACLs and minimize
the need for further revisions to trip
limits or differential DAS counting
rates. Thus, these trip limits should not
result in any different economic impacts
than those identified for the proposed
2011 ACLs discussed above.
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Great South Channel Exemption Area
This measure would remove the
existing yellowtail flounder peak
spawning closures and allow LAGC
scallop vessels to fish for scallops in the
Great South Channel Exemption Area
through the year. It is expected that this
measure would allow such vessels to
harvest individual allocations of
scallops in a more cost-effective
manner. In doing so, vessel profitability
would improve and increase IFQ share
values compared to the no action
alternative. However, the potential
benefit cannot be reliably quantified. If
it is later found that fishing with scallop
dredge gear during yellowtail flounder
peak spawning seasons interferes with
yellowtail flounder spawning success,
the proposed elimination of the
spawning closures may reduce the
likelihood that yellowtail flounder
stocks will rebuild and could lead to
further economic impacts in the future
to ensure that the rebuilding
requirements of the FMP are achieved.
GOM Cod Spawning Protection Area
FW 45 would create a GOM Cod
Spawning Protection Area and prohibit
commercial and recreational vessels
from fishing in this area with gear
capable of catching regulated species
and ocean pout from April 1 through
June 30 of each year. The proposed
measure would affect private
recreational anglers and vessels issued a
NE multispecies charter/party permit
and the value such anglers derive from
taking a trip into the proposed
protection area. Recreational fishing
values are typically measured by the
economic surplus beyond what anglers
have to pay to take a trip, using
specialized surveys that are not
available for the recreational groundfish
fishery at this time. It can be expected
that the proposed action would reduce
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the economic surplus to anglers that fish
in this area, as they would not be
allowed to fish for groundfish in their
preferred area from April to June of each
year. Even if trips could be taken in a
different area during these months, the
reduction in economic surplus would
still impact affected entities.
An estimate of the impact of the
proposed measures on charter/party
vessels was derived by measuring the
loss in passenger revenues if trips are
not taken in this area and the vessel
cannot fish in another area. During FYs
2007 through 2009, up to 2 percent of
charter/party trips taken in the GOM
between April and June occurred in the
proposed protection area. However,
only about 10 vessels are considered
likely to be affected by this action based
upon their more recent activity within
this area. For trips taken in these areas
during FYs 2008 and 2009, gross sales
were up to $112,000 per year. For
vessels that took multiple trips into this
area, annual gross sales would be
reduced by about 6 to 7 percent, or
about $10,000 per vessel (the impacts
ranged from less than $1,000 to just over
$42,000 per vessel, depending on the
FY). Overall, the proposed action would
reduce the annual gross sales of the
entire charter/party fishery operating in
the GOM by between 1.9 to 3 percent.
These impacts likely represent a
maximum impact, as this analysis did
not consider the sales from fishing in
alternative locations. If charter/party
vessels are able to attract passengers
willing to fish in other areas, these
impacts would be mitigated, at least to
some degree.
Handgear A and Handgear B Measures
If implemented, FW 45 would specify
stock-specific cod trip limits and trip
limit adjustments (i.e., different trip
limits and trip limit adjustments for
GOM and GB cod stocks) for vessels
issued a limited access NE multispecies
Handgear A or an open access NE
multispecies Handgear B permit, as
described above. In addition, this action
would allow Handgear A and Handgear
B vessels to access the existing GB
Seasonal Closure Area, and Handgear A
vessels to access the existing Sector
Rolling Closure Areas. Finally, this
action would exempt Handgear A and
Handgear B vessels from the dockside/
roving monitoring requirements, as
described further below.
Compared to the no action alternative,
the proposed measures are expected to
improve the economic opportunity
available to such vessels. Although the
realized economic impacts of these
measures are uncertain as far as the
number of vessels that would benefit
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from these measures based on historic
fishing patterns and the degree by
which landings by such vessels would
change, they are expected to be positive.
In particular, specifying stock-specific
trip limits and adjustments means that
handgear vessels fishing for GB cod
would not be subject to lower cod limits
if high catch rates of GOM cod by
common pool vessels necessitates lower
trip limits to prevent the common pool
sub-ACL for that stock from being
exceeded prior to the end of the FY.
Thus, the economic impacts caused by
unnecessarily reducing the cod limit for
handgear vessels fishing in the GB cod
stock area would be avoided. Further,
increasing access to seasonal closure
areas would provide handgear vessels
operating in the common pool a greater
chance of landing the allowable cod
limit early in the FY before common
pool cod trip limits would need to be
reduced to ensure the sub-ACL is not
exceeded. Further, by maintaining the
Handgear A cod trip limit at 300 lb (135
kg) per trip until the applicable cod trip
limit for vessels operating under a NE
multispecies DAS drops below 300 lb
(135 kg) per DAS, such vessels would be
better able to land larger amounts of cod
and increase fishing revenue compared
to the no action alternative.
Dockside/Roving and At-Sea Monitor
Requirements
This action would make several
changes to the current dockside/roving
monitoring requirements, including
delaying the requirement for the fishing
industry to pay for dockside/roving and
at-sea monitoring coverage until FY
2013, exempting vessels issued a NE
multispecies Handgear A or B and Small
Vessel Category permits operating in the
common pool from the dockside/roving
monitoring requirements, maintaining
the trip-end hail reports in the absence
of any dockside/roving monitoring
requirements for a particular FY, and
requiring dockside monitors to inspect
the fish holds. Delaying the fishing
industry’s responsibility to pay for
dockside/roving monitors and
exempting handgear and Small Vessel
category permits from the dockside/
roving monitoring requirements would
save approximately $281,000 per year
(assuming 20 percent of trips would be
covered), while delaying the
responsibility for paying for at-sea
monitoring would save industry about
$5 million per year (assuming 30
percent of trips would be covered). If
the level of NMFS funding prevents the
Agency from providing sufficient at-sea
monitoring coverage through FY 2013,
then uncertainty in catch accounting
may necessitate the adoption of higher
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buffers between the ABC and ACL for
each stock in future FYs to account for
this increased management uncertainty.
Higher buffers would result in
decreased ACLs and lower fishing
revenues, if adopted in a future action.
Maintaining the trip-end hail reports in
the absence of any dockside/roving
monitoring program for a particular FY
would maintain the costs anticipated for
such reports, as implemented under
Amendment 16. These costs were
estimated to be $24,750 ($0.90 per hail
report) based on 25,000 trips per year.
However, based on fishing patterns
during FY 2010, it is likely that the
number of trips will be lower in future
years, with about 13,000 trips expected
during FY 2010. If this trend continues,
trip-end hail reports would cost about
$12,870 per year. Inspection of fish
holds is an administrative measure that
would not affect the costs or revenues
of fishing operations. Because dockside
monitoring service providers are
required to have sufficient insurance to
cover liability associated with dockside
monitor injury, this should result in no
impact to either inspected vessels or
service providers.
Exempting Handgear A, Handgear B,
and vessels issued a Small Vessel
Category permit from these regulations
would reduce operational costs to such
vessels. Assuming dockside/roving
monitoring costs remain the same as
they are during FY 2010, the estimated
costs of dockside/roving monitoring
would be a fixed rate of $33 per trip,
and an additional $27 for a trip in
which a roving monitor is required,
with an additional $0.015 per lb ($0.033
per kg) of regulated species landed for
20 percent of trips taken. These costs
would represent 5.2 percent of the total
regulated species landed by Small
Vessel Category permits, and 2.3 percent
and 3.7 percent of the regulated species
landed by Handgear A and Handgear B
permits, respectively. This action would
reduce such costs, amounting to an
aggregate annual savings of $9,841.
Sector Measures
If implemented, FW 45 would
recalculate the PSC for each stock on a
yearly basis to reflect the elimination of
landings histories from cancelled
permits and allow sectors to request an
exemption from the dockside/roving
monitoring requirements as part of their
annual operations plans. Assuming
equivalent PSC utilization rates and cost
of fishing, the economic value derived
from available ACL would be
unchanged whether the PSC from
cancelled permits is allocated to the
common pool under the no action
alternative, or equally distributed to all
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permits as proposed in this action. If, on
average, vessels that fish in the common
pool are less profitable than sector
vessels, then this action would result in
an improvement in these vessels’
economic efficiency as compared to
taking no action. The magnitude of the
impact from this provision would likely
be small, as few permits have been
cancelled since the PSCs were
calculated using permits valid as of May
1, 2008. Cancelled permits represent
only about 72,000 lb (32,659 kg) of all
species combined that would be divided
among the 1,288 valid limited access NE
multispecies permits based on each
permit’s individual fishing history.
Thus, this measure, in itself, is unlikely
to make an unprofitable fishing
operation marginally profitable.
Nevertheless, this action would provide
some positive benefit and increased
economic opportunity to all remaining
permit holders, and may increase the
amount of ACE available on the market
to lease. Allowing sectors to request an
exemption from the dockside/roving
monitoring requirements would likely
result in cost savings to applicable
sectors that are difficult to quantify. It
is expected that some sectors would
request an exemption from the
dockside/roving monitoring
requirements, particularly for trips in
southern waters targeting monkfish with
large mesh. These trips rarely encounter
regulated species and ocean pout,
suggesting that the dockside/roving
monitoring requirements offer little
benefit to increasing the accuracy of
monitoring data or the enforceability of
sector provisions. Thus, such an
exemption, if justified, could result in
reducing operational costs and
increasing the economic efficiency of
sector operations. The environmental
analysis developed to support a sector
operations plan that includes such an
exemption request, not FW 45, would
include a discussion of any anticipated
economic impacts of such a request.
This action would also approve five
new sectors, including four State permit
banks and an additional lease-only
sector. The approval of these new
sectors may affect the market price of
both permits or available DAS and ACE
on the leasing market. There is a
concern that the presence of large
institutions such as State governments
that have less emphasis on achieving a
return on investment, and the potential
for such institutions to acquire permits
in a short contracting window, would
raise the price of available permits for
sale. This increase could place a private
entity at a competitive disadvantage in
relation to the permit market,
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11879
particularly if access to capital for
investment in additional permits by
such private entities is limited or
already maximized. For these same
reasons, State permit banks may also
serve to lower the price of DAS or ACE
available on the leasing market. The
lowering the price of DAS or ACE
available on the leasing market by Stateoperated permit banks, along with the
approval of another lease-only sector,
may benefit some vessels by providing
additional fishing opportunities at a
lower market price, especially
considering reports that the ACE leasing
market that has developed so far during
FY 2010 has resulted in higher leasing
rates, and a restricted supply of
available ACE.
Overall, however, the presence of
additional permit banks and lease-only
sectors would facilitate price discovery,
leading to more efficient markets, the
establishment of competitive prices, and
a limitation on the ability of market
participants to exert some form of
monopoly power. Finally, the approval
of the lease-only sector may provide
some benefits to participating vessels in
that it could, depending on the fee
structure developed by that sector,
reduce or eliminate the need for
participating vessels to pay fees
associated with dockside/roving and atsea or electronic monitoring and require
participating vessels to only pay a
processing fee for any ACE or DAS
transactions in which it participates.
Based on funding provided to such
permit banks to date, it is unlikely that
the amount of permits and associated
DAS and ACE that would be able to be
purchased by State permit banks would
be sufficient to fully meet the demand
for available ACE, as a rough estimate
suggests that available funding would
only able to procure about 1,300 mt of
ACE of all stocks, if permits are
available to purchase. This benefit is
likely to accrue only to a subset of
vessels, at least initially, as State permit
banks would only be able to lease ACE
to vessels that are 45 feet (13.7 m) or
shorter and are associated with
communities of less than 30,000
residents, based on funding agreements
with NMFS. While State permit banks
may be able to lower the price of
available DAS and ACE, if they elect to
offer DAS or ACE at below the
prevailing market price, this would
affect the returns to private entities in
the leasing market that also offer DAS or
ACE to lease to other entities.
Any estimate of the magnitude of the
possible impacts of the proposed
approval of State permit banks or the
lease-only sector is speculative. This
action would only approve the concept
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of such additional sectors, and would
not actually approve the annual
operations of these sectors. That
approval is occurring through a parallel
rulemaking to this proposed action.
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Corrections
There are several corrections
proposed in this rule that are considered
to be mostly administrative in nature
and do not affect vessel operations that
would result in any economic impact to
regulated entities. These corrections
would include inserting text that would
apply a long-standing prohibition on the
sale of fish while carrying passengers for
hire to vessels fishing on a sector trip
and those fishing under the Small
Vessel Category and Handgear A permit
restrictions, inserting a prohibition to
prevent offloading fish prior to the
arrival of an assigned dockside/roving
monitor, clarifying that sectors can only
carry over up to 10 percent of allocated
ACE for each stock except for GB
yellowtail flounder into the next FY,
clarifying that permits in CPH can
participate in sectors to reflect the intent
of Amendment 16, and revising the text
describing how PSCs are calculated to
more precisely describe the process
outlined in Amendment 16 and
implemented by NMFS.
Measures Proposed To Mitigate Adverse
Economic Impacts of the Proposed
Action
The proposed action contains several
measures that would directly or
indirectly provide small entities with
some ability to offset at least some
portion of the estimated economic
impacts associated with proposed
measures. The major mitigating
measures would include allowing LAGC
scallop vessels greater access to the
Great South Channel Exemption area;
increasing access to the seasonal closure
areas for Handgear A and Handgear B
permits; exempting the existing
dockside/roving monitoring
requirements; delaying requiring sectors
and common pool vessels to pay for
dockside/roving and at-sea or electronic
monitoring; extending rebuilding period
for GB yellowtail flounder and formal
recognition of the rebuilt status of
pollock; redistributing PSC from
cancelled permits to all remaining valid
limited access NE multispecies permits;
and approving new sectors, including
State permit banks and a lease-only
sector. During the development of
Framework 45, NMFS and the Council
considered ways to reduce the
regulatory burden on and provide
flexibility to the regulated community.
The approach taken is consistent with
the recent Presidential Memorandum on
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Regulatory Flexibility, Small Business,
and Job Creation (January 18, 2011).
Proposed actions and alternatives are
described in detail in Framework 45,
which includes an Environmental
Assessment, Regulatory Impact Review,
and Initial Regulatory Flexibility
Analysis (available at ADDRESSES).
Eliminating the yellowtail flounder
peak spawning closure areas in the
Great South Channel Exemption Area
would enable LAGC scallop vessels
greater access to this area. If this
measure reduces operational costs by
allowing vessels to operate in a more
efficient manner, it could increase the
economic efficiency of vessel operations
and increase the value of the IFQ
permits.
Exempting Handgear A, Handgear B,
and Small Vessel Category permits from
dockside/roving monitoring
requirements, delaying industry
responsibility for paying for dockside/
roving monitoring coverage until FY
2013, and delaying industry
responsibility for paying for a sector atsea monitoring program until FY 2013
would explicitly reduce monitoring
costs to affected entities, saving such
entities approximately $5.28 million
each year compared to the no action
alternative.
Allowing vessels with handgear
permits access to at least some of the
seasonal closure areas would increase
the chance that such permits could
increase their catch of regulated species,
particularly during the early months of
the fishing season before trip limits may
be reduced to prevent the overall ACLs
from being exceeded. Similar benefits
would be expected from specifications
of stock-specific trip limits and trip
limit adjustments for cod for these
vessels.
Extending the rebuilding program for
GB yellowtail flounder would indirectly
reduce economic impacts on NE
multispecies vessels by allowing higher
ACLs to be specified for the remainder
of the rebuilding program compared to
the existing rebuilding program adopted
for this stock. The adoption of updated
biological reference points for pollock
would formally end the rebuilding
program implemented for this stock
under Amendment 16, and enable the
specification of higher ACLs on an
indefinite basis that would have
otherwise expired on April 30, 2011,
following the extension of the July 20,
2010, emergency rule.
As noted above, the approval of new
sectors, including State permit banks
and a lease-only sector, would help to
reduce vessel operational costs by
increasing the amount of DAS and ACE
available on the leasing market,
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reducing market price for such
additional fishing opportunities, and
increasing competition in the leasing
market by providing alternative means
to acquire the ACE necessary for to help
vessels remain financially solvent. In
addition, it is possible that the leaseonly sector could reduce sector
monitoring fees due to the presumption
that participating vessels would not be
actively fishing, but rather exist for the
sole purpose of providing PSC that the
sector may use to enable other sectors to
continue fishing.
Economic Impacts of Alternatives to the
Proposed Action
Under the no action alternative,
updated status determination criteria
would not be adopted for pollock. These
updated criteria were adopted in the
July 20, 2010, emergency action, but
would expire on April 30, 2011, if not
formally integrated into the FMP under
this action. The expiration of the
emergency action would mean that the
rebuilding program implemented under
Amendment 16 would be reinstated,
and that the fishery would not be able
to benefit from the harvest the
additional pollock based upon its status
as a rebuilt stock. The implications of
this alternative are transmitted through
lower ACLs described in further detail
below.
Because FW 45 is a discrete
adjustment in a long line of frameworks
and amendments, a number and scope
of alternatives have either already been
considered in earlier actions or are not
appropriate in the context of this action.
FW 45 considered five alternatives to
revising the GB yellowtail flounder
rebuilding strategy. These five
alternatives included: (1) The no action
alternative that would maintain the
current FW 42 rebuilding period that
would rebuild the GB yellowtail
flounder stock by FY 2014 with a 75
percent probability of success; (2) Suboption A (the proposed action) that
would rebuild this stock by 2016 with
a 50 percent probability of success; (3)
Sub-option B that would rebuild this
stock by 2016 with a 60 percent
probability of success; (4) Sub-option C
that would rebuild this stock by 2016
with a 75 percent probability of success;
and (5) Sub-option D that would rebuild
this stock by 2019 with a 60 percent
probability of success. The present
values of a stream of potential revenues
over a 10-year period for each of these
alternatives are presented in Section
9.4.1 of the FW 45 EA using several
discount rates. Discards were not
incorporated into this analysis;
however, because discard rates are not
expected to differ among the
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alternatives, this was not expected to
affect the ranking of these alternatives.
According to this analysis, sub-option
D (rebuilding this stock by 2019 with a
60-percent probability of success) would
result in the highest median present
values among all alternatives
considered, followed by sub-option A
(the proposed action), sub-option B, the
no action alternative, and sub-option C.
This pattern was repeated, regardless of
the discount rate applied. Sub-option D
would result in U.S. catches with a
median present value of $74.7 million
through 2020, while the proposed action
is expected to yield $70.8 million over
the same period, using a 5-percent
discount rate. Therefore, sub-option D
would result in about $4 million of
additional revenue, compared to the
proposed action, over the course of 10
years. However, as noted earlier in this
preamble, because sub-option D would
extend the rebuilding period though FY
2019, the rebuilding period would run
13 years, or 3 years beyond the
maximum rebuilding period allowed
under the Magnuson-Stevens Act.
Therefore, that alternative is not
consistent with applicable law. The
proposed action, in contrast, is
consistent with applicable law and
would result in the next highest median
present value among the alternatives
considered. Thus, the proposed action
represents the alternative with the least
economic impact of the alternatives that
were considered that are also consistent
with applicable law.
Under the no action alternative, the
ACLs implemented under FW 44 would
be retained for FYs 2011 and 2012.
Those ACLs do not reflect the updated
status of pollock, or the extended
rebuilding period for GB yellowtail
flounder proposed in this action. This
alternative would result in foregone
income for NE multispecies vessels, as
they would not be able to capitalize on
increased ACLs for these stocks under
this proposed action. The economic
impact of the no action alternative was
measured by estimating the revenue
associated with landing the full amount
of available ACL for each stock using
prices as of September 30, 2010. This
analysis suggests that the potential
value of FY 2011 and 2012 ACLs under
the no action alternative would be
$191.3 million and $184.6 million,
respectively. These estimates are lower
than that specified under FW 44 ($205
million and $196 million, respectively)
due to changes in prices used. The
proposed action would result in a value
of between $185.4 million and $187.8
million, depending on the GB yellowtail
flounder rebuilding alternative
analyzed, or between nearly $3.5
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million and $6 million less value than
the no action alternative. However,
because the no action alternative and
GB yellowtail flounder rebuilding suboption C would specify an ACL of zero
for that stock, the potential realized
revenues associated with those options
would be much lower, since revenues
associated with any other stock caught
with GB yellowtail flounder would be
reduced as well. This factor is
particularly important for sectors, as
sectors are not allowed to operate in the
GB yellowtail flounder stock area since
they would not be allocated any GB
yellowtail flounder ACE during FYs
2011 and 2012 based on existing
regulations.
A more realistic estimate projected FY
2011 landings based upon the ACL
utilization rate as of October 16, 2010,
and a consideration of discards. This
analysis suggests that potential revenues
from the no action alternative would be
$80.2 million during FY 2011 and $81.9
million during FY 2012, with estimated
sector revenues of $71.1 million and $73
million for those FYs, respectively.
Compared to the proposed action, the
no action alternative would produce
about $0.4 million more revenue in FY
2011 and $9.4 million revenue in FY
2012. Once again, this amount does not
factor in potential revenue loss from the
specification of zero GB yellowtail ACL.
Because the no action alternative for
ACLs is affected by the integration of
updates to the status determination
criteria for pollock and the updated
rebuilding program for GB yellowtail
flounder, the no action alternative for
specifying ACLs would not incorporate
the best available scientific information
and would be, therefore, inconsistent
with the Magnuson-Stevens Act.
Failure to specify FY 2011 U.S./
Canada Management Area TACs under
the no action alternative would result in
increased revenue compared to the
proposed action. Vessels would be able
to harvest the available ACL for GB cod,
GB haddock, and GB yellowtail flounder
throughout GB, including in the Eastern
U.S./Canada Area, but overall catches
would still be limited by ACLs specified
under this action. Revenue from the
catch of other stocks caught in
conjunction with these stocks would
also be higher under the no action
alternative. However, because the no
action alternative would ignore the joint
efforts to manage transboundary stocks,
it would likely set F on such stocks
higher in FY 2011 than they actually are
(or would be), and perhaps at
unsustainable levels. In contrast to the
proposed action, the no action
alternative may result in long-term
negative economic impacts if such
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fishing would undermine efforts to
prevent overfishing and rebuild
overfished stocks of GB cod and GB
yellowtail flounder and necessitate
further action in the future to ensure the
FMP’s conservation objectives are
achieved.
The Council considered one
alternative allocation of GB and SNE/
MA yellowtail flounder to the Atlantic
sea scallop fishery to the allocations
proposed in this action based upon the
management measures adopted in the
scallop fishery as part of FW 22 to the
Atlantic Sea Scallop FMP. The Council
opted to retain the existing allocations
of yellowtail flounder implemented
under FW 44, even though it also
analyzed additional alternatives as part
of FW 22 to the Atlantic Sea Scallop
FMP. This allocation to the scallop
fishery recognizes the importance of
yellowtail flounder to the prosecution of
the scallop fishery and allocates most of
the yellowtail flounder that the fishery
is expected to catch if it harvests the
available scallop yield. It also creates an
incentive for scallop fishermen to
reduce bycatch of yellowtail flounder in
order to maximize scallop yield. It is
expected that the allocation of
yellowtail flounder to the scallop
fishery will represent the greatest net
benefit to the nation, as it will enable
the continuation of one of the nation’s
most profitable fisheries by reducing the
chance that the catch of scallops will be
limited by the available bycatch of
yellowtail flounder, as described in
further detail in FW 45 and the analysis
of FW 22 to the Atlantic Sea Scallop
FMP.
A possible impact from allocating
yellowtail flounder to the scallop
fishery is that it may limit opportunities
for groundfish fishermen to target other
stocks. The FW 45 analysis
characterizes this potential impact as
secondary revenue at risk. The proposed
action to allocate yellowtail flounder to
the scallop fishery would place far less
fishing revenue at risk compared to the
other option considered. For example,
based upon the ratio of yellowtail
flounder revenues to total groundfish
revenues, the amount of fishing revenue
at risk in the groundfish fishery (i.e., the
amount of groundfish revenue reduction
that would be expected if the groundfish
fishery was not able to harvest allocated
100 percent of the available yellowtail
flounder based on the proposed
allocations) is estimated to be $11.2
million in FY 2011 and $17.2 million in
FY 2012 for GB yellowtail flounder, and
$1.8 million in FY 2011 and $2.8
million in FY 2012 for SNE/MA
yellowtail flounder, or a combined
$32,560,387 at a discount rate of 3
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percent. The amount of fishing revenue
at risk in the scallop fishery (i.e., the
amount of scallop revenue reduction
that would be expected if the groundfish
fishery was not able to harvest allocated
100 percent of the available yellowtail
flounder based on the proposed
allocations) is estimated to be about
$4,228,222 in FY 2011 using a discount
rate of 3 percent, because the GB
yellowtail flounder sub-ACL to the
scallop fishery is 93 percent of the
amount of yellowtail flounder the
scallop fishery is expected to catch in
FY 2012, indicating that 7 percent of the
scallop revenues from this stock are at
risk in FY 2013 based on the AMs
implemented in FW 22 to the Atlantic
Sea Scallop FMP that would be
implemented the year after an overage.
Therefore, the total fishing revenue at
risk for the proposed allocation is $36.8
million in FY 2011, using a 3 percent
discount rate. In contrast, under the
other allocation alternative considered
(Option 2) that would have only
allocated 90 percent of the estimated
yellowtail flounder catch by the scallop
fishery based upon updated projections,
the revenue at risk would be
$91,063,372 ($27,042,096 revenue at
risk in the groundfish fishery plus
$64,021,277 revenue at risk in the
scallop fishery) in FY 2011 using a
3 percent discount rate, or $54,274,763
more revenue at risk than the proposed
action. Thus, the proposed action put
far less fishing revenue at risk. In
addition, the proposed action may also
result in less adverse biological effects
on a wide range of species compared to
Option 2, because the proposed action
would reduce the likelihood that the
scallop bycatch of yellowtail flounder
would exceed sub-ACLs and, therefore,
the overall yellowtail flounder ABC, and
trigger AMs that would alter the
distribution of scallop fishing effort and
the resulting impacts to other species.
The only other alternative considered
to the proposed approval of five new
sectors is the no action alternative. The
no action alternative for this measure
would not approve any new sectors for
FY 2011. This may have a small adverse
economic impact on permit holders
intending to participate in the
Sustainable Harvest Sector III. However,
permit holders may be able to remain in
or join the Sustainable Harvest Sector
that was approved under Amendment
16. If the operations plan for the
Sustainable Harvest Sector III offered
reduced operational costs to
participating vessels due to the intended
lease-only status of that sector, those
costs savings may not be realized under
the no action alternative.
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Additional sectors were considered
for approval under FW 45, but the
Council chose not to approve them
because they did not submit an
operations plan to NMFS by the existing
deadline of September 1. Approval of
these other sectors, the Northeast
Fisheries Sector XIV and the
Sustainable Harvest Sector II, may have
resulted in a small positive economic
impact since permit holders would have
had more options for which sectors to
join. However, permit holders were able
to join other sectors following the
Council’s decision, so any impacts to
such permit holders would be minimal.
Under the no action alternative, the
dockside monitoring requirements
originally implemented under
Amendment 16 would be maintained.
These requirements would make sector
vessels responsible for developing and
paying for a dockside/roving monitoring
program beginning in FY 2010, and an
at-sea or electronic monitoring program
beginning in FY 2012, while all
common pool vessels would be subject
to dockside/roving monitoring
beginning in FY 2012. The no action
alternative would have resulted in an
estimated annual cost of $9,841 per
vessel to Handgear A, Handgear B, and
Small Vessel Category vessels. Further,
the estimated $280,000 cost of dockside
monitoring to the remainder of the
fishery would have been imposed on the
fleet, as well as the $5 million cost
associated with at-sea monitoring
during FYs 2011 and 2012, respectively.
Failing to redistribute PSC from
cancelled permits to all valid limited
access NE multispecies as of a certain
date each year as part of the no action
alternative would result in continued
allocation of such PSC to the common
pool. This allocation would provide
some marginal benefit to the common
pool that would be redistributed to the
entire fishery under the proposed
action. However, because the amount of
PSCs that have been cancelled to date
represent a small amount of fish (72,000
lb (32,659 kg) of all regulated species
and ocean pout stocks combined), the
benefits are not expected to materially
affect the operations of the common
pool under the no action alternative,
particularly because a majority of this
PSC is pollock, a species that has not
been constraining to the operations by
the common pool so far during FY 2010.
The no action alternative would not
specify stock-specific cod limits for
handgear vessels, allow such vessels
increased access to the existing seasonal
closure areas, or allow LAGC vessels to
fish in the Great South Channel
Exemption Area during peak yellowtail
flounder spawning periods. It would
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maintain the existing value of such
permits, and not improve the economic
opportunity provided to these vessels as
part of the proposed action. Such an
action would reduce the economic
efficiency of such vessels.
The no action alternative would also
maintain the existing recreational
measures and would not implement the
proposed GOM Cod Spawning
Protection Area. Since FY 2007, the
number of trips taken by charter/party
vessels in the GOM has steadily
declined, with gross receipts declining
by almost $2 million based on an
average ticket price of $60 per person.
Thus, the no action alternative is not
likely to alter what appears to be a
continuing downward trend in
participation in the charter/party fishery
in the GOM in recent years.
Description of the Projected Reporting,
Recordkeeping, and Other Compliance
Requirements of the Proposed Rule
Reporting and Recordkeeping
Requirements
The only reporting and recordkeeping
requirements affected by this proposed
rule are the request for a LOA to fish
south of the GOM Regulated Mesh Area
by Handgear A and Handgear B vessels,
or a similar declaration via VMS prior
to each trip by Handgear A vessels
required to use VMS under the existing
regulations, and the trip-end hail report
already approved as part of Amendment
16. This action would not impose any
new reporting or recordkeeping
requirements that have not already been
in existence. However, it would require
additional vessels (handgear vessels) to
comply with the LOA requirements.
Existing reporting and recordkeeping
requirements for the dockside/roving
and at-sea or electronic monitoring
programs approved under Amendment
16 have been included below for
reference.
The costs associated with the
reporting and recordkeeping
requirements supporting measures
proposed in this action are detailed in
the PRA analysis associated with
Amendment 16 and the permit family of
forms for the Northeast Region of
NMFS. The time burden associated with
a telephone call to request for a LOA to
fish south of the GOM Regulated Mesh
Area is estimated at 5 minutes, with no
costs to vessels requesting such a LOA.
The cost associated with a similar
declaration via VMS is estimated at
$0.50 per submission. For the trip-end
hail reports, the yearly cost to each
vessel would be approximately $17,
assuming that such reports were made
via VMS. Costs to vessels receiving
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dockside/roving monitoring services
proposed under Amendment 16 include
$10 per year for confirming pre-trip hail
reports and $13 per year to confirm tripend hail reports and specify whether a
particular trip would be observed by a
dockside monitor. Requirements to
maintain and enter data into a dockside
monitoring database would cost
approximately $4,225 per service
provider annually, while submitting
dockside monitoring data to NMFS
would cost each service provider
approximately $36,000 per year. Similar
costs to service providers are expected
to notify sector vessels of selection for
at-sea/electronic monitoring coverage
($3,125 per year) and to submit at-sea or
electronic monitoring data to NMFS
($36,000 per year).
Other Compliance Requirements
This proposed rule contains a
collection-of-information requirement
subject to the PRA and which has been
approved by OMB under the various
OMB control numbers listed below.
Public reporting burden for these
collections of information are estimated
to average, as follows:
1. VTR submissions, OMB# 0648–
0605, (5 min/response);
2. Sector operations plan and
associated NEPA analysis, OMB# 0648–
0605, (640 hr/response);
3. Dockside/at-sea monitoring service
provider application, OMB# 0648–0605,
(10 hr/response);
4. Dockside/at-sea monitoring service
provider response to application
disapproval, OMB# 0648–0605, (10 hr/
response);
5. Data entry for sector discard
monitoring system, OMB# 0648–0605,
(3 min/response);
6. Sector weekly catch report, OMB#
0648–0605, (4 hr/response);
7. Sector annual report, OMB# 0648–
0605, (12 hr/response);
8. Notification of expulsion from a
sector, OMB# 0648–0605, (30 min/
response);
9. Request to transfer ACE, OMB#
0648–0605, (5 min/response);
10. VMS certification form, OMB#
0648–0605, (10 min/response);
11. VMS confirmation call, OMB#
0648–0605, (5 min/response);
12. VMS area and DAS declaration,
OMB# 0648–0605, (5 min/response);
13. VMS trip-level catch reports,
OMB# 0648–0605, (15 min/response);
14. Request for a LOA to participate
in the GOM Haddock Gillnet Pilot
Program, OMB# 0648–0605, (5 min/
response);
15. Request for a LOA to fish in a NE
multispecies RGA, OMB# 0648–0605, (5
min/response);
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16. VMS declaration to fish in a NE
multispecies RGA, OMB# 0648–0605, (5
min/response);
17. Pre-trip hail report to a dockside
monitoring service provider, OMB#
0648–0605, (2 min/response);
18. Trip-end hail report to a dockside
monitoring service provider, OMB#
0648–0605, (15 min/response);
19. Confirmation of dockside
monitoring trip-end hail report, OMB#
0648–0605, (2 min/response);
20. Dockside/roving service provider
data entry, OMB# 0648–0605, (3 min/
response);
21. Dockside/roving or at-sea monitor
deployment report, OMB# 0648–0605,
(10 min/response);
22. Dockside/roving or at-sea
monitoring service provider catch report
to NMFS upon request, OMB# 0648–
0605, (5 min/response);
23. Dockside/roving or at-sea monitor
report of harassment and other issues,
OMB# 0648–0605, (30 min/response);
24. OLE debriefing of dockside/roving
or at-sea monitors, OMB# 0648–0605, (2
hr/response);
25. Copy of dockside/roving or at-sea
monitoring service provider contract
upon request, OMB# 0648–0605, (30
min/response);
26. Copy of dockside/roving or at-sea
monitoring service provider information
materials upon request, OMB# 0648–
0605, (30 min/response);
27. Observer program pre-trip
notification, OMB# 0648–0605, (2 min/
response);
28. Daily VMS catch reports when
fishing in the U.S./Canada Management
Area and CA II SAPs, OMB# 0648–0605,
(15 min/response);
29. Daily VMS catch reports when
fishing in the CA I Hook Gear Haddock
SAP, OMB# 0648–0605, (15 min/
response);
30. Daily VMS catch reports when
fishing in the Regular B DAS Program,
OMB# 0648–0605, (15 min/response);
31. Copy of the dealer weigh-out slip
or dealer signature of the dockside
monitor report, OMB# 0648–0605, (2
min/response);
32. Forward trip start/end hails to
NMFS, OMB# 0648–0605 (2 min/
response);
33. Notification to vessel/sector/
NMFS of monitor emergency, OMB#
0648–0605 (5 min/response);
34. Initial vessel application for a
limited access Handgear A permit, OMB
Control Number 0648–0202, (10 min/
response);
35. DAS Transfer Program
application, OMB Control Number
0648–0202, (5 min/response);
36. VMS purchase and installation,
OMB Control Number 0648–0202, (1 hr/
response);
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11883
37. Automated VMS polling of vessel
position twice per hour while fishing
within the U.S./Canada Area, OMB
Control Number 0648–0202, (5 sec/
response);
38. VMS proof of installation, OMB
Control Number 0648–0202, (5 min/
response);
39. Expedited submission of a
proposed SAP, OMB Control Number
0648–0202, (20 hr/response);
40. Request to power down VMS for
at least 1 month, OMB Control Number
0648–0202, (5 min/response);
41. Request for an LOA to participate
in the GOM Cod Landing Exemption,
OMB Control Number 0648–0202, (5
min/response);
42. Request for an LOA to participate
in the Skate Bait-only Possession Limit
Exemption, OMB Control Number
0648–0202, (5 min/response);
43. Submission of a sector allocation
proposal, OMB Control Number 0648–
0202, (50 hr/response);
44. DAS ‘‘flip’’ notification via VMS
for the Regular B DAS pilot program,
OMB #0648–0202 (5 min/response);
45. DAS ‘‘flip’’ notification via VMS
for the Eastern U.S./Canada Haddock
SAP Pilot Program, OMB #0648–0202
(5 min/response);
46. NMFS Office of Law Enforcement
landings notice requirement for
Category 1 herring vessels operating
with an observer waiver, OMB# 0648–
0521, (5 min/response);
47. Notification and Communication
with USCG and Center for Coastal
Studies, OMB# 0648–0521, (10 min/
response);
48. Written requests to receive a DAS
credit for standing by an entangled
whale, OMB# 0648–0521, (30 min/
response);
49. Vessel baseline downgrade request
for the DAS Leasing Program, OMB#
0648–0475, (1 hr/response);
50. Spawning block declaration,
OMB# 0648–0202 (2 min/response);
51. Sector Manager daily reports for
CA I Hook Gear Haddock SAP, OMB#
0648–0212 (2 hr/response);
52. DAS Leasing Program application,
OMB# 0648–0475 (10 min/response);
and
53. Declaration of intent to fish inside
and outside of the Eastern U.S./Canada
Area on the same trip, OMB# 0648–0202
(5 min/response).
Public reporting burden for these
requirements includes the time for
reviewing instructions, searching
existing data sources, gathering and
maintaining the data needed,
andcompleting and reviewing the
collection of information. Send
comments regarding these burden
estimates, or any other aspect of this
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data collection, including suggestions
for reducing the burden, to NMFS (see
ADDRESSES) and by e-mail to
OIRA_Submission@omb.eop.gov, or fax
to 202–395–7285.
Notwithstanding any other provision
of the law, no person is required to
respond to, and no person shall be
subject to penalty for failure to comply
with, a collection of information subject
to the requirements of the PRA, unless
that collection of information displays a
currently valid OMB Control Number.
List of Subjects in 50 CFR Part 648
Fisheries, Fishing, Reporting and
recordkeeping requirements.
Dated: February 22, 2011.
Samuel D. Rauch III,
Deputy Assistant Administrator for
Regulatory Programs, National Marine
Fisheries Service.
For the reasons stated in the
preamble, 50 CFR part 648 is proposed
to be amended as follows:
PART 648—FISHERIES OF THE
NORTHEASTERN UNITED STATES
1. The authority citation for part 648
continues to read as follows:
Authority: 16 U.S.C. 1801 et seq.
2. In § 648.10, revise paragraph (k)(1)
to read as follows:
§ 648.10 VMS and DAS requirements for
vessel owners/operators.
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*
*
*
*
*
(k) * * *
(1) Reporting requirements for all
limited access NE multispecies vessel
owners or operators. In addition to any
other reporting requirements specified
in this part, the owner or operator of any
vessel issued a limited access NE
multispecies permit on either a common
pool or sector trip must declare the
following information via VMS or IVR,
as instructed by the Regional
Administrator:
(i) Broad stock area(s) to be fished. To
fish in any of the broad stock areas, the
vessel owner or operator must declare
his/her intent to fish within one or more
of the NE multispecies broad stock
areas, as defined in paragraph (k)(3) of
this section, prior to leaving port at the
start of a fishing trip;
(ii) VTR serial number. On its return
to port, prior to crossing the VMS
demarcation line, as defined at § 648.10,
the vessel owner or operator must
provide the VTR serial number for the
first page of the VTR for that particular
trip, or other applicable trip ID specified
by NMFS; and
(iii) Trip-end hail report. Unless
otherwise required to comply with both
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the dockside/roving monitoring tripstart and trip-end hail reports pursuant
to § 648.87(b)(5), beginning in fishing
year 2011 (May 1, 2011), upon its return
to port and prior to crossing the VMS
demarcation line as defined in § 648.10,
the owner or operator of any vessel
issued a limited access NE multispecies
permit that is subject to the VMS
requirements specified in paragraph
(b)(4) of this section must submit a tripend hail report to NMFS via VMS, as
instructed by the Regional
Administrator. The trip-end hail report
must include at least the following
information, as instructed by the
Regional Administrator: The vessel
permit number; VTR serial number, or
other applicable trip ID specified by
NMFS; intended offloading location(s),
including the dealer name/offload
location, port/harbor, and State for the
first dealer/facility where the vessel
intends to offload catch and the port/
harbor, and State for the second dealer/
facility where the vessel intends to
offload catch; estimated date/time of
arrival; estimated date/time of offload;
and the estimated total amount of all
species retained, including species
managed by other FMPs (in pounds,
landed weight), on board at the time the
vessel first offloads its catch from a
particular trip. The trip-end hail report
must be submitted at least 6 hr in
advance of landing for all trips of at
least 6 hr in duration or occurring more
than 6 hr from port. For shorter trips,
the trip-end hail reports must be
submitted upon the completion of the
last tow or hauling of gear, as instructed
by the Regional Administrator.
*
*
*
*
*
3. In § 648.14, revise paragraph
(k)(7)(i)(B); and add paragraphs (k)(9)(i),
(k)(15)(ii)(A)(5), and (k)(18)(i)(D) to read
as follows:
§ 648.14
Prohibitions.
*
*
*
*
*
(k) * * *
(7) * * *
(i) * * *
(B) Fish for, harvest, possess, or land
regulated species in or from the closed
areas specified in § 648.81(a) through (f)
and (o), unless otherwise specified in
§ 648.81(c)(2)(iii), (f)(2)(i), (f)(2)(iii),
(f)(2)(vi), (i), (o)(2)(i), or as authorized
under § 648.85.
*
*
*
*
*
(9) * * *
(i) If operating under the provisions of
a limited access NE multispecies
Handgear A permit south of the GOM
Regulated Mesh Area, as defined at
§ 648.80(a)(1), fail to declare the vessel
operator’s intent to fish in this area via
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VMS or fail to obtain or retain on board
a letter of authorization from the
Regional Administrator, as required by
§ 648.82(b)(6)(iv).
*
*
*
*
*
(15) * * *
(ii) * * *
(A) * * *
(5) If operating under the provisions
of a limited access NE multispecies
Handgear B permit south of the GOM
Regulated Mesh Area, as defined at
§ 648.80(a)(1), fail to obtain or retain on
board a letter of authorization from the
Regional Administrator, as required by
§ 648.88(a)(2)(iv).
*
*
*
*
*
(18) * * *
(i) * * *
(D) Offload fish before a dockside/
roving monitor arrives, if selected to
have its offloading events observed by a
dockside/roving monitor, as specified
by § 648.87(b)(1)(v)(B)(1) and
(b)(5)(i)(C).
*
*
*
*
*
4. In § 648.80, revise the introductory
text to paragraph (a)(18), and remove
paragraphs (a)(18)(ii)(C) and (D) to read
as follows:
§ 648.80 NE Multispecies regulated mesh
areas and restrictions on gear and methods
of fishing.
(a) * * *
(18) Great South Channel Scallop
Dredge Exemption Area. Vessels issued
a LAGC scallop permit, including
limited access scallop permits that have
used up their DAS allocations, may fish
in the Great South Channel Scallop
Dredge Exemption Area, as defined
under paragraph (a)(18)(i) of this
section, when not under a NE
multispecies or scallop DAS or on a
sector trip, provided the vessel complies
with the requirements specified in
paragraph (a)(18)(ii) of this section and
applicable scallop regulations in subpart
D of this chapter.
*
*
*
*
*
5. In § 648.81, revise paragraphs
(f)(2)(vi) and (i); and add paragraphs
(g)(2)(vi) and (o) to read as follows:
§ 648.81 NE multispecies closed areas and
measures to protect EFH.
*
*
*
*
*
(f) * * *
(2) * * *
(vi) That are fishing on a sector trip,
or under the provisions of a Northeast
multispecies Handgear A permit, as
specified at § 648.82(b)(6), provided
such vessels comply with the following
restricted areas referred to as the Sector
Rolling Closure Areas:
*
*
*
*
*
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(g) * * *
(2) * * *
(vi) That are fishing under the
provisions of a Northeast multispecies
Handgear A permit, as specified at
§ 648.82(b)(6), or the provisions of a
Northeast multispecies Handgear B
permit, as specified at § 648.88(a).
*
*
*
*
*
(i) Transiting. Unless otherwise
restricted or specified in this paragraph
(i), a vessel may transit CA I, the
Nantucket Lightship Closed Area, the
Cashes Ledge Closed Area, the Western
GOM Closure Area, the GOM Rolling
Closure Areas, the GB Seasonal Closure
Area, the EFH Closure Areas, and the
GOM Cod Spawning Protection Area, as
defined in paragraphs (a)(1), (c)(1),
(d)(1), (e)(1), (f)(1), (g)(1), (h)(1), and
(o)(1), of this section, respectively,
provided that its gear is stowed in
accordance with the provisions of
§ 648.23(b). A vessel may transit CA II,
as defined in paragraph (b)(1) of this
section, in accordance with paragraph
(b)(2)(iv) of this section. Private
recreational or charter/party vessels
fishing under the Northeast
multispecies provisions specified at
§ 648.89 may transit the GOM Cod
Spawning Protection Area, as defined in
paragraph (o)(1) of this section,
provided all bait and hooks are removed
from fishing rods, and any regulated
species on board have been caught
outside the GOM Cod Spawning
Protection Area and has been gutted and
stored.
*
*
*
*
*
(o) GOM Cod Spawning Protection
Area. (1) Except as specified in
paragraph (o)(2) of this section, from
April through June of each year, no
fishing vessel or person on a fishing
vessel may enter, fish in, or be in; and
no fishing gear capable of catching NE
multispecies may be used, on, or be on
board, a vessel in the GOM Cod
Spawning Protection Area, as defined
by straight lines connecting the
following points in the order stated (a
chart depicting this area is available
from the Regional Administrator upon
request):
GOM COD SPAWNING PROTECTION
AREA
Point
CSPA1
CSPA2
CSPA3
CSPA4
CSPA1
N. latitude
..............
..............
..............
..............
..............
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42°50.95′
42°47.65′
42°54.91′
42°58.27′
42°50.95′
18:01 Mar 02, 2011
W. longitude
70°32.22′
70°35.64′
70°41.88′
70°38.64′
70°32.22′
Jkt 223001
(2) Paragraph (o)(1) of this section
does not apply to persons on a fishing
vessel or fishing vessels:
(i) That have not been issued a NE
multispecies permit and that are fishing
exclusively in State waters;
(ii) That are fishing with or using
exempted gear as defined under this
part, excluding pelagic gillnet gear
capable of catching NE multispecies,
except for vessels fishing with a single
pelagic gillnet not longer than 300 ft
(91.4 m) and not greater than 6 ft (1.83
m) deep, with a maximum mesh size of
3 inches (7.6 cm), provided:
(A) The net is attached to the boat and
fished in the upper two-thirds of the
water column;
(B) The net is marked with the vessel
owner’s name and vessel identification
number;
(C) There is no retention of regulated
species or ocean pout; and
(D) There is no other gear on board
capable of catching NE multispecies;
(iii) That are fishing as a charter/party
or recreational fishing vessel, provided
that:
(A) With the exception of tuna, fish
harvested or possessed by the vessel are
not sold or intended for trade, barter, or
sale, regardless where the species are
caught;
(B) The vessel has no gear other than
pelagic hook and line gear, as defined in
this part, on board unless that gear is
properly stowed pursuant to § 648.23(b);
and
(C) There is no retention of regulated
species, or ocean pout; and
(iv) That are transiting pursuant to
paragraph (i) of this section.
*
*
*
*
*
6. In § 648.82, revise paragraphs (a)(2),
the introductory text of paragraph (b)(6),
and (n)(2)(iv), and add paragraph
(b)(6)(iv) to read as follows:
§ 648.82 Effort-control program for NE
multispecies limited access vessels.
(a) * * *
(2) Notwithstanding any other
provision of this part, any vessel issued
a NE multispecies limited access permit
may not call into the DAS program and
fish under a DAS, fish on a sector trip,
or fish under the provisions of a limited
access Small Vessel Category or
Handgear A permits pursuant to
paragraphs (b)(5) and (b)(6) of this
section, respectively, if such vessel
carries passengers for hire for any
portion of a fishing trip.
(b) * * *
(6) Handgear A category. A vessel
qualified and electing to fish under the
Handgear A category, as described in
§ 648.4(a)(1)(i)(A), may retain, per trip,
up to 300 lb (135 kg) of cod, one
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Atlantic halibut, and the daily
possession limit for other regulated
species and ocean pout, as specified
under § 648.86. If either the GOM or GB
cod trip limit applicable to a vessel
fishing under a NE multispecies DAS
permit, as specified in § 648.86(b)(1)
and (b)(2), respectively, is reduced
below 300 lb (135 kg) per DAS by
NMFS, the cod trip limit specified in
this paragraph (b)(6) shall be adjusted to
be the same as the applicable cod trip
limit specified for NE multispecies DAS
permits. For example, if the GOM cod
trip limit for NE multispecies DAS
vessels was reduced to 250 lb (113.4 kg)
per DAS, then the cod trip limit for a
vessel issued a Handgear A category
permit that is fishing in the GOM
Regulated Mesh Area would also be
reduced to 250 lb (113.4 kg). Qualified
vessels electing to fish under the
Handgear A category are subject to the
following restrictions:
*
*
*
*
*
(iv) Declaration. For any such vessel
that is not required to use VMS
pursuant to § 648.10(b)(4), to fish for GB
cod south of the GOM Regulated Mesh
Area, as defined at § 648.80(a)(1), a
vessel owner or operator must obtain,
and retain on board, a letter of
authorization from the Regional
Administrator stating his or her intent to
fish south of the GOM Regulated Mesh
Area and may not fish in any other area
for a minimum of 7 consecutive days
from the effective date of the letter of
authorization. For any such vessel that
is required to use VMS pursuant to
§ 648.10(b)(4), to fish for GB cod south
of the GOM Regulated Mesh Area, as
defined at § 648.80(a)(1), a vessel owner
or operator must declare his or her
intent to fish south of the GOM
Regulated Mesh Area on each trip
through the VMS prior to leaving port,
in accordance with instructions
provided by the Regional Administrator.
Such vessels may transit the GOM
Regulated Mesh Area, as defined at
§ 648.80(a)(1), provided that their gear is
stowed in accordance with the
provisions at § 648.23(b).
*
*
*
*
*
(n) * * *
(2) * * *
(iv) Monitoring requirements. Except
as specified in paragraph (n)(2)(iv)(C) of
this section, starting in fishing year 2012
(May 1, 2012), landings of regulated
species or ocean pout by common pool
vessels shall be monitored at the point
of offload by independent, third-party
service providers approved to provide
such services by NMFS, as specified in
paragraphs (n)(2)(iv)(A) and (B) of this
section. Unless otherwise instructed by
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NMFS, these service providers shall
deploy dockside monitors to monitor
the offload of catch directly to a dealer,
and roving monitors to monitor the
offload of catch onto a truck for
subsequent shipment to a dealer. For
fishing year 2012 only, common pool
vessels must comply with any dockside/
roving monitoring program specified by
NMFS pursuant to
§ 648.87(b)(1)(v)(B)(1). None of the costs
associated with dockside/roving
monitors during fishing year 2012 shall
be paid by the owner or operator of a
vessel subject to these requirements.
Starting in fishing year 2013 and
thereafter, the costs associated with
monitoring vessel offloads shall be the
responsibility of individual vessels,
unless otherwise instructed by NMFS.
An individual vessel owner or operator
may only use one dockside/roving
monitoring service provider per fishing
year beginning in fishing year 2013, and
must contract for such services with a
service provider approved by NMFS
pursuant to § 648.87(b)(4), as instructed
by the Regional Administrator. Both
common pool vessels and service
providers providing offloading
monitoring services will be subject to
the requirements specified in
§ 648.87(b)(5).
(A) Coverage levels. For fishing year
2012, dockside/roving monitoring
coverage levels shall be determined by
NMFS based on available funding. If
NMFS does not require 100-percent
coverage of all common pool trips,
NMFS shall first provide dockside/
roving monitoring for trips that are not
also assigned an observer or at-sea
monitor pursuant to § 648.11. Starting in
fishing year 2013, at least 20 percent of
the trips taken by vessels operating
under the provisions of the common
pool shall be monitored. To ensure that
these levels of coverage are achieved, if
a trip has been selected to be observed
by a dockside/roving monitor, all
offloading events associated with that
trip must be monitored by a dockside/
roving monitor, as specified in
paragraph (n)(2) of this section, and a
vessel may not offload any of its catch
until the dockside/roving monitor
arrives. For example, a vessel offloading
at more than one dealer or facility must
have a dockside/roving monitor present
during offload at each location. All
landing events at remote ports that are
selected to be observed by a dockside/
roving monitor must have a roving
monitor present to witness offload
activities to the truck, as well as a
dockside monitor present at each dealer
to certify weigh-out of all landings.
Except as provided in this paragraph
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(n)(2)(iv)(A) or paragraph (n)(2)(iv)(C) of
this section, or as instructed by the
Regional Administrator, any service
provider providing dockside/monitoring
services required under this paragraph
(n)(2)(iv) must ensure that coverage is
randomly distributed among all such
trips, and that the landing events
monitored are representative of fishing
operations by common pool vessels
throughout the fishing year.
(B) Dockside/roving monitor service
provider standards. Starting in fishing
year 2013, a common pool vessel must
employ a service provider approved by
NMFS to provide dockside/roving
monitor services, as identified by the
Regional Administrator. To be approved
to provide the services specified in
paragraph (n)(2) of this section,
dockside/roving monitor service
providers must meet the standards in
§ 648.87(b)(4).
(C) Exemption. Common pool vessels
operating under the provisions of either
a limited access Northeast multispecies
Small Vessel Category permit or
Handgear A permit, as specified at
§§ 648.82(b)(5) and (6), respectively, or
an open access Northeast multispecies
Handgear B permit, as specified at
§ 648.88(a), are exempt from the
dockside/roving monitoring
requirements specified in this paragraph
(n)(2)(iv).
*
*
*
*
*
7. In § 648.87, revise the introductory
text of paragraphs (b)(1)(i)(E),
(b)(1)(viii), (b)(2), and (b)(5); revise
paragraphs (b)(1)(i)(A), (b)(1)(i)(C),
(b)(1)(i)(E)(1), (b)(1)(i)(E)(2)(i) and (ii),
(b)(1)(iii)(C), (b)(1)(v)(B), (b)(1)(viii)(C),
and (c)(2)(i); and add paragraphs
(b)(5)(ii)(E) and (d)(20) through (24) to
read as follows:
§ 648.87
Sector allocation.
*
*
*
*
*
(b) * * *
(1) * * *
(i) * * *
(A) Allocated stocks. Each sector shall
be allocated a TAC in the form of an
ACE for each NE multispecies stock,
with the exception of Atlantic halibut,
SNE/MA winter flounder, ocean pout,
windowpane flounder (both the GOM/
GB and the SNE/MA stocks), and
Atlantic wolffish based upon the
cumulative PSCs of vessels/permits
participating in each sector during a
particular fishing year, as described in
paragraph (b)(1)(i)(E) of this section. In
the event that a future allocation of
SNE/MA winter flounder can be made
available pursuant to the biennial
adjustment or framework process
specified in § 648.90(a)(2), an ACE for
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this stock will be specified pursuant to
paragraph (b)(1)(i)(E)(1) of this section.
*
*
*
*
*
(C) Carry-over. With the exception of
GB yellowtail flounder, a sector may
carry over an amount of ACE equal to
up to 10 percent of its original ACE
allocation for each stock that is unused
at the end of one fishing year into the
following fishing year. Any unused ACE
allocated for Eastern GB stocks pursuant
to paragraph (b)(1)(i)(B) of this section
will contribute to the 10-percent carryover allowance for each stock, as
specified in this paragraph (b)(1)(i)(C),
but will not increase an individual
sector’s allocation of Eastern GB stocks
during the following year. This carryover ACE remains effective during the
subsequent fishing year even if vessels
that contributed to the sector allocation
during the previous fishing year are no
longer participating in the same sector
for the subsequent fishing year.
*
*
*
*
*
(E) Potential sector contribution
(PSC). For the purposes of allocating a
share of the available ACL for each NE
multispecies stock to approved sectors
pursuant to § 648.90(a)(4), the landings
history of all limited access NE
multispecies permits shall be evaluated
to determine each permit’s share of the
overall landings for each NE
multispecies stock as specified in
paragraphs (b)(1)(i)(E)(1) and (2) of this
section. When calculating an individual
permit’s share of the overall landings for
a particular regulated species or ocean
pout stock, landed weight shall be
converted to live weight to maintain
consistency with the way ACLs are
calculated pursuant to § 648.90(a)(4)
and the way ACEs are allocated to
sectors pursuant to this paragraph
(b)(1)(i). This calculation shall be
performed on July 1 of each year, unless
another date is specified by the Regional
Administrator, to redistribute the
landings history associated with permits
that have been voluntarily relinquished
or otherwise canceled among all
remaining valid limited access NE
multispecies permits as of that date
during the following fishing year. The
PSC calculated pursuant to this
paragraph (b)(1)(i)(E) shall remain with
the permit indefinitely, but may be
permanently reduced or eliminated due
to a permit sanction or other
enforcement action.
(1) Calculation of PSC for all NE
multispecies stocks except GB cod.
Unless otherwise specified in paragraph
(b)(1)(i)(E)(2) of this section, for each
valid limited access NE multispecies
permit, including limited access NE
multispecies Handgear A permits,
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landings recorded in the NMFS dealer
database of each stock of NE
multispecies determined by NMFS to be
the landings history associated with that
permit while subject to the NE
multispecies regulations based on
whether the vessel fishing under that
permit was issued a limited access NE
multispecies permit or subsequently
qualified for a limited access NE
multispecies permit pursuant to
§ 648.4(a)(1)(i), including regulated
species or ocean pout caught under a NE
multispecies DAS when participating in
the skate or monkfish fisheries, but
excluding, for example, landings by
scallop vessels operating under a
scallop DAS, shall be summed for
fishing years 1996 through 2006. This
sum shall then be divided by the total
landings of each NE multispecies stock
during the same period by all permits
eligible to join sectors as of May 1, 2008.
The resulting figure shall then be
multiplied by a factor of 1/PSC of
remaining permits as of June 1 of each
year, unless another date is specified by
the Regional Administrator, to calculate
the PSC for each individual valid
limited access NE multispecies permit
for each regulated species or ocean pout
stock allocated to sectors in the NE
multispecies fishery for the following
fishing year pursuant to this paragraph
(b)(1)(i)(E)(1).
(2) * * *
(i) GB cod PSC for permits committed
to participate in the GB Cod Hook Gear
Sector or GB Cod Fixed Gear Sector. For
each owner of a valid NE multispecies
permit, or CPH, that committed to
participate in either the GB Cod Hook
Gear Sector or the GB Cod Fixed Gear
Sector as evidenced by a valid
authorized signature executed on or
before March 1, 2008, on a preliminary
roster for either of these sectors, the PSC
for GB cod shall be equal to the sum of
dealer landings of GB cod for fishing
years 1996 through 2001, divided by the
total landings of GB cod by permits
eligible to join sectors as of May 1, 2008,
during that period. The PSC for all other
regulated species or ocean pout stocks
specified for these permits shall be
calculated pursuant to paragraph
(b)(1)(i)(E)(1) of this section. The PSC
calculated pursuant to this paragraph
(b)(1)(i)(E)(2)(i) shall then be multiplied
by a factor of 1/PSC of remaining
permits as of June 1 of each year, unless
another date is specified by the Regional
Administrator, to calculate the GB cod
PSC for each permit for the following
fishing year.
(ii) GB cod PSC for all other permits.
For each owner of a valid NE
multispecies permit or CPH that has not
committed to participate in either the
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GB Cod Hook Gear Sector or GB Cod
Fixed Gear Sector, as specified in
paragraph (b)(1)(i)(E)(2)(i) of this
section, the GB cod PSC for each such
permit or CPH shall be based upon the
GB cod PSC available after accounting
for the GB cod PSC calculated pursuant
to paragraph (b)(1)(i)(E)(2)(i) of this
section. To determine the GB cod PSC
for each of these permits, the sum of the
individual permit’s landings of GB cod
available in the NMFS dealer database
for fishing years 1996 through 2006
shall be divided by the total landings of
GB cod during that period by the total
landings of GB cod by permits eligible
to join sectors as of May 1, 2008, during
that period, after subtracting the total
landings of GB cod by permits that
committed to participate in either the
GB Cod Hook Sector or GB Cod Fixed
Gear Sector as of March 1, 2008. This
individual share shall then be
multiplied by the available GB cod PSC
calculated by subtracting the GB cod
PSC allocated pursuant to paragraph
(b)(1)(i)(E)(2)(i) of this section from one.
The PSC calculated pursuant to this
paragraph (b)(1)(i)(E)(2)(ii) shall then be
multiplied by a factor of 1/PSC of
remaining permits as of July 1 of each
year, unless another date is specified by
the Regional Administrator, to calculate
the GB cod PSC for each permit.
*
*
*
*
*
(iii) * * *
(C) ACE buffer. At the beginning of
each fishing year, NMFS shall withhold
20 percent of a sector’s ACE for each
stock for a period of up to 61 days (i.e.,
through June 30), unless otherwise
specified by NMFS, to allow time to
process any ACE transfers submitted at
the end of the fishing year pursuant to
paragraph (b)(1)(viii) of this section and
to determine whether the ACE allocated
to any sector needs to be reduced, or
any overage penalties need to be applied
to individual permits/vessels in the
current fishing year to accommodate an
ACE overage by that sector during the
previous fishing year, as specified in
paragraph (b)(1)(iii) of this section.
*
*
*
*
*
(v) * * *
(B) Independent third-party
monitoring program. A sector must
comply with any dockside/roving
monitoring program specified by NMFS
for fishing years 2011 and 2012,
pursuant to paragraph (b)(1)(v)(B)(1) of
this section, including the dockside/
roving monitoring operational standards
specified in paragraph (b)(5) of this
section, and develop and implement an
independent third-party dockside/
roving monitoring program by fishing
year 2013. A sector must also develop
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11887
and implement an at-sea or electronic
monitoring program by fishing year
2012 (May 1, 2012) consistent with
paragraph (b)(1)(v)(B)(2) of this section.
Both the dockside/roving and at-sea or
electronic monitoring program
developed by sectors must be approved
by NMFS for monitoring landings and
utilization of sector ACE, as specified in
this paragraph (b)(1)(v)(B). Any service
provider providing dockside/roving and
at-sea or electronic monitoring services
pursuant to this paragraph (b)(1)(v)(B)
must meet the service provider
standards specified in paragraph (b)(4)
of this section, and any dockside/roving
and at-sea or electronic monitoring
program proposed by sectors must meet
the operational standards specified in
paragraphs (b)(5) and (b)(6) of this
section, respectively, and be approved
by NMFS in a manner consistent with
the Administrative Procedure Act. None
of the costs associated with any
dockside/roving monitor or at-sea or
electronic monitoring requirements
shall be paid by the owner or operator
of a vessel subject to these requirements
during fishing years 2011 and 2012.
Starting in fishing year 2013, sectors
shall be responsible for paying the costs
associated with dockside/roving and atsea or electronic monitoring coverage,
unless otherwise instructed by NMFS.
(1) Dockside/roving monitoring
program. Dockside/roving monitors
shall monitor landings of regulated
species and ocean pout at every offload
for which a trip has been selected to be
observed by a dockside/roving monitor,
whether directly to a Federally
permitted dealer or to a truck for
transfer to a Federally permitted dealer,
to verify such landings at the time the
landings are weighed by a Federally
permitted dealer and to certify the
landing weights are accurate as reported
on the dealer report. Unless otherwise
specified in this part, the level of
coverage for landings is specified in
paragraph (b)(1)(v)(B)(3) of this section.
To ensure that these levels of coverage
are achieved, if a trip has been selected
to be observed by a dockside/roving
monitor, all offloading events associated
with that trip, regardless of how many
or the location of offloading events,
must be monitored, and a vessel may
not offload any of its catch until the
dockside/roving monitor arrives. For
example, if a trip is selected to be
observed by a dockside/roving monitor,
a vessel offloading at more than one
dealer or facility must have a dockside/
roving monitor present during the
offload at each location. All landing
events at remote ports that are selected
to be observed by a dockside/roving
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monitor must have a roving monitor
present to witness offload activities to
the truck, as well as a dockside monitor
present at each dealer to certify weighout of all landings. Any service provider
providing dockside/roving monitoring
services pursuant to this paragraph
(b)(1)(v)(B)(1) must meet the service
provider standards specified in
paragraph (b)(4) of this section. The
details of the dockside/roving
monitoring program used by each sector
starting in fishing year 2013 pursuant to
paragraph (b)(1)(v)(B) of this section
must be specified in the sector’s
operations plan, and must be consistent
with the operational standards specified
in paragraph (b)(5) of this section. The
Regional Administrator shall review the
dockside/roving monitoring program
and approve/disapprove it as part of the
yearly operations plan in a manner
consistent with the Administrative
Procedure Act. Common pool vessels
operating under the provisions of the
either a limited access Northeast
multispecies Small Vessel Category
permit or Handgear A permit, as
specified at §§ 648.82(b)(5) and (b)(6),
respectively, or an open access
Northeast multispecies Handgear B
permit, as specified at § 648.88(a), are
exempt from the dockside/roving
monitoring requirements specified in
this paragraph (b)(1)(v)(B)(1). Except as
provided in this paragraph
(b)(1)(v)(B)(1), all common pool and
sector vessels, along with service
providers providing dockside
monitoring services, will be subject to
the dockside monitoring operational
requirements specified at § 648.87(b)(5).
(2) At-sea or electronic monitoring
program. Beginning in fishing year
2012, in addition to any dockside/
roving monitoring requirement
implemented pursuant to paragraph
(b)(1)(v)(B)(1) of this section, an at-sea
or electronic monitoring program must
be implemented by each sector to verify
area fished, as well as catch and
discards by species and gear type. A
sector may elect to develop an at-sea or
electronic monitoring program before
fishing year 2012 and specify the details
of such a program in its operations plan.
Electronic monitoring may be used in
place of actual observers if the
technology is deemed sufficient by
NMFS for a specific trip type based on
gear type and area fished, in a manner
consistent with the Administrative
Procedure Act. No electronic monitoring
technology may be used in place of an
at-sea monitor, unless approved by
NMFS as part of the sector’s annual
operations plan. If either an at-sea
monitor or electronic monitoring is
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assigned to a particular trip, a vessel
may not leave port without the
appropriate at-sea monitor or electronic
monitoring equipment on board. The atsea or electronic monitoring program
developed and implemented by each
sector must be consistent with the
operational standards specified in
paragraph (b)(6) of this section, with
details of the program specified in the
sector’s annual operations plan. The
Regional Administrator shall review the
at-sea or electronic monitoring program
and approve/disapprove it as part of the
annual operations plan in a manner
consistent with the Administrative
Procedure Act. The level of coverage for
operations by sector vessels is specified
in paragraph (b)(1)(v)(B)(3) of this
section.
(3) Coverage levels. Except as
specified in paragraph (b)(1)(v)(B)(3)(i),
any service provider providing
dockside/roving or at-sea or electronic
monitoring services required under this
paragraph (b)(1)(v)(B)(3) must provide
coverage that is fair and equitable, and
distributed in a statistically random
manner among all trips such that
coverage is representative of fishing
activities by all vessels within the
common pool or each sector, and by all
operations of common pool vessels or
vessels operating in each sector
throughout the fishing year.
(i) Dockside/roving monitoring. For
fishing years 2011 and 2012, NMFS
shall determine the level of coverage for
any NMFS-sponsored dockside/roving
monitoring program specified pursuant
to paragraph (b)(1)(v)(B)(1) of this
section based on available funding. If
100-percent coverage of all sector and
common pool trips is not possible,
NMFS shall first provide coverage to
trips without an observer or at-sea
monitor assigned pursuant to
§ 648.11(k), or approved electronic
monitoring equipment assigned
pursuant to paragraph (b)(1)(v)(B) of this
section for sector vessels. Starting in
fishing year 2013, at least 20 percent of
all sector and common pool trips shall
be monitored by dockside/roving
monitors.
(ii) At-sea or electronic monitoring.
For fishing year 2012, coverage levels
for an at-sea or electronic monitoring
program developed by a sector shall be
specified by NMFS based upon the
amount of funding available to support
sector at-sea or electronic monitoring
programs for that fishing year. Starting
in fishing year 2013, coverage levels for
an at-sea or electronic monitoring
program shall be specified by NMFS,
but shall be less than 100 percent of all
sector trips. Such coverage levels must
be sufficient to at least meet the
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Standardized Bycatch Reporting
Methodology and accurately monitor
sector operations. In the event that a
NMFS-sponsored observer and a thirdparty at-sea monitor are assigned to the
same trip, only the NMFS observer is
required to observe that trip.
(4) Hail reports. For the purposes of
the dockside/roving and at-sea
monitoring requirements specified in
this paragraph (b)(1)(v)(B), sector vessels
must submit all hail reports for a sector
trip in which the NE multispecies catch
applies against the ACE allocated to a
sector, as specified in this part, to
service providers offering dockside/
roving and at-sea monitoring services
pursuant to this paragraph (b)(1)(v)(B).
The mechanism and timing of the
transmission of such hail reports must
be consistent with instructions provided
by the Regional Administrator for any
dockside/roving monitoring program
required by paragraph (b)(1)(v)(B)(1) of
this section, or specified in the annual
sector operations plan, consistent with
paragraphs (b)(5) and (b)(6) of this
section.
(5) Notification of service provider
change. If for any reason a sector
decides to change approved service
providers used to provide dockside/
roving or at-sea or electronic monitoring
services required in this paragraph
(b)(1)(v), the sector manager must first
inform NMFS in writing in advance of
the effective date of the change in
approved service providers in
conjunction with the submission of the
next weekly sector catch report
specified in paragraph (b)(1)(vi)(B) of
this section. A sector may employ more
than one service provider at any time,
provided any service provider employed
by a sector meets the standards
specified in paragraph (b)(4) of this
section.
*
*
*
*
*
(viii) ACE transfers. All or a portion
of a sector’s ACE for any NE
multispecies stock may be transferred to
another sector at any time during the
fishing year and up to 2 weeks into the
following fishing year (i.e., through May
14), unless otherwise instructed by
NMFS, to cover any overages during the
previous fishing year. A sector is not
required to transfer ACE to another
sector. An ACE transfer only becomes
effective upon approval by NMFS, as
specified in paragraph (b)(1)(viii)(B) of
this section.
*
*
*
*
*
(C) Duration of transfer.
Notwithstanding ACE carried over into
the next fishing year pursuant to
paragraph (b)(1)(i)(C) of this section,
ACE transferred pursuant to this
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paragraph (b)(1)(viii) is only valid for
the fishing year in which the transfer is
approved, with the exception of ACE
transfer requests that are submitted up
to 2 weeks into the subsequent fishing
year to address any potential ACE
overages from the previous fishing year,
as provided in paragraph (b)(1)(iii) of
this section, unless otherwise instructed
by NMFS.
*
*
*
*
*
(2) Operations plan and sector
contract. To be approved to operate,
each sector must submit an operations
plan and preliminary sector contract to
the Regional Administrator no later than
September 1 prior to the fishing year in
which the sector intends to begin
operations, unless otherwise instructed
by NMFS. A final roster, sector contract,
and list of Federal and State permits
held by participating vessels for each
sector must be submitted by December
1 prior to the fishing year in which the
sector intends to begin operations,
unless otherwise instructed by NMFS.
The operations plan may cover a 1- or
2-year period, provided the analysis
required in paragraph (b)(3) of this
section is sufficient to assess the
impacts of sector operations during the
2-year period and that sector
membership, or any other parameter
that may affect sector operations during
the second year of the approved
operations plan, does not differ to the
point where the impacts analyzed by the
supporting NEPA document are
compromised. Each vessel and vessel
operator and/or vessel owner
participating in a sector must agree to
and comply with all applicable
requirements and conditions of the
operations plan specified in this
paragraph (b)(2) and the letter of
authorization issued pursuant to
paragraph (c)(2) of this section. It shall
be unlawful to violate any such
conditions and requirements unless
such conditions or restrictions are
identified in an approved operations
plan as administrative only. If a
proposed sector does not comply with
the requirements of this paragraph
(b)(2), NMFS may decline to propose for
approval such sector operations plans,
even if the Council has approved such
sector. At least the following elements
must be contained in either the final
operations plan or sector contract
submitted to NMFS:
*
*
*
*
*
(5) Dockside monitoring operational
standards. In addition to the
independent third-party monitoring
provider standards specified in
paragraph (b)(4) of this section, any
dockside monitoring program developed
VerDate Mar<15>2010
18:01 Mar 02, 2011
Jkt 223001
by NMFS pursuant to paragraph
(b)(1)(v)(B)(1) of this section must meet
the following operational standards to
be approved by NMFS:
(ii) * * *
(E) Inspection of fish holds. A
dockside/roving monitor assigned to
observe the offloading of fish from a
particular trip shall inspect the fish
holds, or any other areas of the vessel
in which fish are stored, to determine if
all fish are offloaded for that particular
trip.
*
*
*
*
*
(c) * * *
(2) * * *
(i) Regulations that may not be
exempted for sector participants. The
Regional Administrator may not exempt
participants in a sector from the
following Federal fishing regulations:
NE multispecies year-round closure
areas; permitting restrictions (e.g., vessel
upgrades, etc.); gear restrictions
designed to minimize habitat impacts
(e.g., roller gear restrictions, etc.); and
reporting requirements. For the
purposes of this paragraph (c)(2)(i), the
DAS reporting requirements specified at
§ 648.82; the SAP-specific reporting
requirements specified at § 648.85; and
the reporting requirements associated
with a dockside monitoring program
specified in paragraph (b)(5)(i) of this
section are not considered reporting
requirements, and the Regional
Administrator may exempt sector
participants from these requirements as
part of the approval of yearly operations
plans. This list may be modified
through a framework adjustment, as
specified in § 648.90.
*
*
*
*
*
(d) * * *
(20) State of Maine Permit Banking
Sector.
(21) State of Rhode Island Permit
Bank sector.
(22) State of New Hampshire Permit
Bank Sector.
(23) State of Massachusetts Permit
Bank Sector.
(24) Sustainable Harvest Sector III.
8. In § 648.88, revise paragraph (a)(1),
and add paragraph (a)(2)(iv) to read as
follows:
§ 648.88 Multispecies open access permit
restrictions.
(a) * * *
(1) The vessel may possess and land
up to 75 lb (90.7 kg) of cod, and up to
the landing and possession limit
restrictions for other NE multispecies
specified in § 648.86, provided the
vessel complies with the restrictions
specified in paragraph (a)(2) of this
section. If either the GOM or GB cod trip
limit applicable to a vessel fishing
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Fmt 4701
Sfmt 4702
11889
under a NE multispecies DAS permit, as
specified in § 648.86(b)(1) and (2),
respectively, is adjusted by NMFS, the
cod trip limit specified in this paragraph
(a)(1) shall be adjusted proportionally
(rounded up to the nearest 25 lb (11.3
kg)). For example, if the GOM cod trip
limit specified at § 648.86(b)(1) doubled,
then the cod trip limit for the Handgear
B category fishing in the GOM
Regulated Mesh Area would also double
to 150 lb (68 kg).
(2) * * *
(iv) Declaration. To fish for GB cod
south of the GOM Regulated Mesh Area,
as defined at § 648.80(a)(1), a vessel
owner or operator must obtain, and
retain on board, a letter of authorization
from the Regional Administrator
declaring his or her intent to fish south
of the GOM Regulated Mesh Area, and
may not fish in any other area for a
minimum of 7 consecutive days from
the effective date of the letter of
authorization. Such a vessel may transit
the GOM Regulated Mesh Area,
provided that their gear is stowed in
accordance with the provisions at
§ 648.23(b).
*
*
*
*
*
9. In § 648.89, revise paragraph (e)(1)
to read as follows:
§ 648.89 Recreational and charter/party
vessel restrictions.
*
*
*
*
*
(e) * * *
(1) GOM Closed Areas. Unless
otherwise specified in this paragraph
(e)(1) of this section, a vessel fishing
under charter/party regulations may not
fish in the GOM closed areas specified
at § 648.81(d)(1) through (f)(1) during
the time periods specified in those
paragraphs, unless the vessel has on
board a valid letter of authorization
issued by the Regional Administrator
pursuant to § 648.81(f)(2)(iii) and
paragraph (e)(3) of this section. The
conditions and restrictions of the letter
of authorization must be complied with
for a minimum of 3 months if the vessel
fishes or intends to fish in the seasonal
GOM closure areas; or for the rest of the
fishing year, beginning with the start of
the participation period of the letter of
authorization, if the vessel fishes or
intends to fish in the year-round GOM
closure areas. A vessel fishing under
charter/party regulations may not fish in
the GOM Cod Spawning Protection Area
specified at § 648.81(o)(1) during the
time period specified in that paragraph,
unless the vessel complies with the
requirements specified at
§ 648.81(o)(2)(iii).
*
*
*
*
*
10. In § 648.90, revise paragraph
(a)(4)(iii)(E)(2) to read as follows:
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Federal Register / Vol. 76, No. 42 / Thursday, March 3, 2011 / Proposed Rules
§ 648.90 NE multispecies assessment,
framework procedures and specifications,
and flexible area action system.
srobinson on DSKHWCL6B1PROD with PROPOSALS2
(a) * * *
(4) * * *
(iii) * * *
(E) * * *
(2) Commercial allocation. The ABC/
ACL for regulated species or ocean pout
stocks available to the commercial NE
multispecies fishery, after consideration
of the recreational allocation pursuant
to paragraph (a)(4)(iii)(E)(1) of this
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section, shall be divided between
sectors operating under an approved
sector operations plan, as described at
§ 648.87(c), and vessels operating under
the provisions of the common pool, as
defined in this part, based upon the
cumulative PSCs of vessels/permits
participating in sectors calculated
pursuant to § 648.87(b)(1)(i)(E). Unless
otherwise specified in paragraph (a)(5)
of this section, regulated species or
ocean pout catch by common pool and
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Sfmt 9990
sector vessels shall be deducted from
the sub-ACL/ACE allocated pursuant to
this paragraph (a)(4)(iii)(E)(2) for the
purposes of determining whether
adjustments to common pool measures
are necessary, pursuant to the common
pool AMs specified in § 648.82(n), or
whether sector ACE overages must be
deducted, pursuant to § 648.87(b)(1)(iii).
*
*
*
*
*
[FR Doc. 2011–4395 Filed 2–28–11; 11:15 am]
BILLING CODE 3510–22–P
E:\FR\FM\03MRP2.SGM
03MRP2
Agencies
[Federal Register Volume 76, Number 42 (Thursday, March 3, 2011)]
[Proposed Rules]
[Pages 11858-11890]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-4395]
[[Page 11857]]
Vol. 76
Thursday,
No. 42
March 3, 2011
Part II
Department of Commerce
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National Oceanic and Atmospheric Administration
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50 CFR Part 648
Magnuson-Stevens Fishery Conservation and Management Act Provisions;
Fisheries of the Northeastern United States; Northeast (NE)
Multispecies Fishery; Framework Adjustment 45; Proposed Rule
Federal Register / Vol. 76 , No. 42 / Thursday, March 3, 2011 /
Proposed Rules
[[Page 11858]]
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 648
[Docket No. 100923469-1002-02]
RIN 0648-BA27
Magnuson-Stevens Fishery Conservation and Management Act
Provisions; Fisheries of the Northeastern United States; Northeast (NE)
Multispecies Fishery; Framework Adjustment 45
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Proposed rule; request for comments.
-----------------------------------------------------------------------
SUMMARY: NMFS proposes regulations to implement measures in Framework
Adjustment (FW) 45 to the NE Multispecies Fishery Management Plan
(FMP). FW 45 was developed by the New England Fishery Management
Council (Council) to prevent overfishing, rebuild overfished stocks,
achieve optimum yield (OY), and minimize the economic impact of
management measures on affected vessels, pursuant to the Magnuson-
Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act).
This action would revise the biological reference points and stock
status for pollock, update annual catch limits (ACLs) for several
stocks for fishing years (FYs) 2011-2012, adjust the rebuilding program
for Georges Bank (GB) yellowtail flounder, increase scallop vessel
access to the Great South Channel Exemption Area, approve five new
sectors, modify the existing dockside and at-sea monitoring
requirements, revise several sector administrative provisions,
establish a Gulf of Maine (GOM) Cod Spawning Protection Area, and
refine measures affecting the catch of limited access NE multispecies
Handgear A vessels. This action would disapprove the Council's proposed
catch limits for GB yellowtail flounder for FY 2011, and instead
propose new catch limits for this stock through emergency action
authority based on new flexibility provided by the International
Fisheries Agreement Clarification Act. This action is necessary to
ensure that the fishery is managed on the basis of the best available
science, to comply with the acceptable biological catch (ABC) control
rules adopted in Amendment 16 to the FMP, and to enhance the viability
of the fishery following the transition to sector management in 2010.
DATES: Comments must be received by March 18, 2011.
ADDRESSES: You may submit comments, identified by 0648-BA27, by any of
the following methods:
Electronic submissions: Submit all electronic public
comments via the Federal eRulemaking Portal: https://www.regulations.gov.
Fax: (978) 281-9135, Attn: Douglas Christel.
Mail: Paper, disk, or CD-ROM comments should be sent to
Patricia A. Kurkul, Regional Administrator, National Marine Fisheries
Service, 55 Great Republic Drive, Gloucester, MA 01930. Mark the
outside of the envelope, ``Comments on the Proposed Rule for NE
Multispecies Framework Adjustment 45.''
Instructions: All comments received are a part of the public record
and will generally be posted to https://regulations.gov without change.
All Personal Identifying Information (for example, name, address, etc.)
voluntarily submitted by the commenter may be publicly accessible. Do
not submit Confidential Business Information or otherwise sensitive or
protected information. NMFS will accept anonymous comments (enter N/A
in the required fields, if you wish to remain anonymous). You may
submit attachments to electronic comments in Microsoft Word, Excel,
WordPerfect, or Adobe PDF file formats only.
Copies of FW 45, its Regulatory Impact Review (RIR), a draft of the
environmental assessment (EA) prepared for this action, and the Initial
Regulatory Flexibility Act (IRFA) analysis prepared by the Council are
available from Paul J. Howard, Executive Director, New England Fishery
Management Council, 50 Water Street, Mill 2, Newburyport, MA 01950. The
IRFA analysis assessing the impacts of the proposed measures on small
entities and describing steps taken to minimize any significant
economic impact on such entities is summarized in the Classification
section of this proposed rule. The FW 45 EA/RIR/IRFA, as well as the
relevant analyses for Amendment 16 and other recent actions, are also
accessible via the Internet at https://www.nefmc.org/nemulti/
or https://www.nero.noaa.gov. Copies of recent stock assessments for
stocks managed by the FMP are also accessible via the Internet at
https://www.nefsc.noaa.gov/groundfish.
Written comments regarding the burden-hour estimates or other
aspects of the collection-of-information requirements contained in this
rule should be submitted to the Regional Administrator at the address
above and to the Office of Management and Budget (OMB) by e-mail at
OIRA_Submission@omb.eop.gov, or fax to (202) 395-7285.
FOR FURTHER INFORMATION CONTACT: Douglas W. Christel, Fishery Policy
Analyst, phone: 978-281-9141, fax: 978-281-9135.
SUPPLEMENTARY INFORMATION:
Background
The FMP specifies management measures for 16 species in Federal
waters off the New England and Mid-Atlantic coasts, including both
large-mesh and small-mesh species. Small-mesh species include silver
hake (whiting), red hake, offshore hake, and ocean pout; while large-
mesh species include Atlantic cod, haddock, yellowtail flounder,
pollock, American plaice, witch flounder, white hake, windowpane
flounder, Atlantic halibut, winter flounder, redfish, and Atlantic
wolffish. Large-mesh species are further divided into 19 individual
stocks and are referred to as ``regulated species,'' that, along with
ocean pout, are collectively referred to as groundfish.
A major overhaul of the FMP occurred in 2004 with implementation of
Amendment 13 on May 1, 2004 (April 27, 2004; 69 FR 22906), which
included the establishment of rebuilding programs for stocks managed by
the FMP and measures necessary to end overfishing, rebuild overfished
stocks, and help mitigate the economic impacts of effort reductions in
the fishery to the extent practicable. Amendment 13 also established a
biennial adjustment process intended to update status determination
criteria, adopt and update rebuilding programs, and revise management
measures necessary to achieve the objectives of the FMP and the
mandates of applicable law. A second substantial revision to the FMP
came in 2010, with the implementation of Amendment 16 (April 9, 2010;
75 FR 18262). Amendment 16 updated status determination criteria for
all regulated NE multispecies and ocean pout stocks based upon revised
assessments for all stocks; adopted rebuilding programs for stocks
newly classified as being overfished and subject to overfishing; and
revised management measures to achieve the conservation objectives of
the FMP and to minimize the economic impacts of such measures,
including significant revisions to the sector management measures,
reporting requirements, trip limits, and days-at-
[[Page 11859]]
sea (DAS) measures. Amendment 16 not only established a process for
specifying ABCs and ACLs and distributing available catch among
components of the fishery that catch regulated species and ocean pout,
but it also specified accountability measures (AMs) necessary to
prevent overfishing on these stocks and addressed overages of ACLs, as
required by the Magnuson-Stevens Act. 16 U.S.C. 1801 et seq. In another
action, FW 44 (April 9, 2010; 75 FR 18356), NMFS set the ACLs for FYs
2010 through 2012, and distributed such allocations among the various
components of the fishery that catch these stocks. An April 9, 2010,
final rule (75 FR 18113) implemented the approval of 17 new sectors in
FY 2010, and specified their respective annual catch entitlements
(ACEs, or sector quotas) for each stock allocated to sectors pursuant
to Amendment 16.
The Council developed FW 45 as part of the established framework
and biennial adjustment process to revise measures necessary to prevent
overfishing and rebuild overfished stocks, while achieving OY in the
fishery and minimizing economic impact to the extent practicable.
Pursuant to the Magnuson-Stevens Act, the Council has proposed FW 45 to
NMFS, which has reviewed the proposal and is presenting it for public
review. If implemented, FW 45 would set and update ACLs for several
stocks pursuant to the process established by Amendment 16 and FW 44.
Updated stock assessments for pollock and GB yellowtail flounder
conducted in 2010 require the ACLs originally established under FW 44
to be updated based upon revised stock status for pollock and a revised
rebuilding program for GB yellowtail flounder proposed in FW 45.
Further, following the transition to sectors under Amendment 16, the
Council realized that several changes to existing measures are
necessary to make the Amendment 16 measures work more effectively, as
described below.
Proposed Measures
The following summarizes the measures proposed by the Council in FW
45, based on the order in which applicable provisions appear in the
regulations at 50 CFR part 648. These measures build upon the
provisions implemented by previous management actions, and are intended
to either supplement or replace existing regulations, as described for
each measure. This proposed rule also includes revisions to regulations
that are not specifically identified in FW 45, but that are necessary
to correct errors in, or clarify, existing provisions, as described
further below. The proposed regulations implementing measures in FW 45
were deemed by the Council to be consistent with FW 45, and necessary
to implement such provisions pursuant to section 303(c) of the
Magnuson-Stevens Act through a January 11, 2011, letter from the
Council Chairman to the Regional Administrator (RA).
1. Status Determination Criteria for Pollock
Amendment 16 updated the status determination criteria for existing
NE multispecies regulated species and ocean pout stocks based upon the
best available scientific information regarding stock status resulting
from the Groundfish Assessment Review Meeting (GARM III), a
comprehensive stock assessment for all species managed by the FMP,
conducted in August 2008. GARM III originally characterized pollock as
overfished and subject to overfishing. However, due to the high
uncertainty of the determination of pollock stock status, as noted in
the GARM III stock assessment conclusions, and on the advice from the
Council's Scientific and Statistical Committee (SSC), the body charged
by the Magnuson-Stevens Act with recommending an ABC to the Council for
each stock, an updated pollock stock assessment was conducted in 2010.
The pollock peer-reviewed benchmark stock assessment review (Stock
Assessment Workshop, or SAW, 50) was completed in June 2010, with the
final summary report completed on July 14, 2010. This assessment
determined that pollock is not overfished or subject to overfishing.
Thus, this species no longer requires the rebuilding program
established in Amendment 16. Based upon this updated assessment, NMFS
implemented an emergency action (July 20, 2010; 75 FR 41996) to
incorporate the results of this assessment and update the status
determination criteria and the associated FY 2010 ABC and ACL for this
species. On December 1, 2010 (75 FR 74661), this emergency action was
continued through the end of FY 2010 (April 30, 2011).
In FW 45, NMFS proposes to integrate the results of the 2010
pollock stock assessment into the FMP. Table 1 lists the proposed
revised status determination criteria, with numerical estimates of
these parameters listed in Table 2. The revised biomass target
parameter for pollock, where spawning stock biomass is at maximum
sustainable yield (SSBMSY) or its proxy, is SSB at 40
percent maximum spawning potential (MSP). The maximum fishing mortality
rate (F) threshold is the FMSY proxy, or
F40MSP.
Table 1--Description of the Proposed Pollock Status Determination Criteria
----------------------------------------------------------------------------------------------------------------
Biomass target Minimum biomass Maximum fishing mortality
Species (Btarget) threshold threshold
----------------------------------------------------------------------------------------------------------------
Pollock............................ SSBMSY: SSB/R (40%MSP) \1/2\ Btarget......... F40MSP
----------------------------------------------------------------------------------------------------------------
Table 2--Numerical Estimates for the Proposed Pollock Status Determination Criteria
----------------------------------------------------------------------------------------------------------------
Biomass target Maximum fishing
Species (SSBMSY or proxy) in mortality threshold MSY in mt
mt (FMSY or proxy)
----------------------------------------------------------------------------------------------------------------
Pollock............................ 91,000................ 0.41.................. 16,200
----------------------------------------------------------------------------------------------------------------
2. Rebuilding Program for GB Yellowtail Flounder
In 2004, GARM II concluded that the GB yellowtail flounder stock
was overfished and subject to overfishing. In response, the Council
developed a rebuilding program for this stock in FW 42 (October 23,
2006; 71 FR 62156). That rebuilding program incorporated an adaptive
rebuilding strategy that was expected to rebuild the stock by 2014 with
a 75-percent probability of success, and was anticipated to rebuild
this stock in 8 years, 2 years ahead of the
[[Page 11860]]
maximum rebuilding period allowed by section 304(e)(4) of the Magnuson-
Stevens Act. The intent of that rebuilding program was to rebuild the
stock as quickly as possible, consistent with efforts to jointly manage
this stock with Canada as part of the U.S./Canada Resource Sharing
Understanding (Understanding).
More recent estimates of the status of this stock conducted by the
Transboundary Resource Assessment Committee (TRAC) in July 2010
indicate that overfishing is not occurring, but that the stock is still
in an overfished condition (TRAC 2010/05). This estimate is affected by
updated estimates of the 2005 year class that suggest this year class
is much smaller than previously thought. This report concludes that it
is not possible to rebuild this stock by 2014, even at F = 0.
Accordingly, as part of FW 45, the Council proposes to revise the GB
yellowtail flounder rebuilding program to rebuild the stock by 2016,
with a 50-percent probability of success to extend the rebuilding
program to the maximum extent allowed by applicable law. This revision
would extend the rebuilding program for this stock out to the maximum
10-year rebuilding period allowed by the Magnuson-Stevens Act and lower
the probability of success from 75 percent to 50 percent in order to
maximize the amount of GB yellowtail flounder that could be caught
while the stock rebuilds.
3. Overfishing Levels and ABCs for Particular Stocks
NMFS also proposes in FW 45 to revise the overfishing levels (OFLs)
and ABCs of particular stocks, including GB cod, GB haddock, GB
yellowtail flounder, and pollock for FYs 2011 and 2012. Revisions to
the OFLs and ABCs for pollock and GB yellowtail flounder are based upon
the updated assessments and revised rebuilding strategies for these
stocks, as described in Items 1 and 2 of this preamble, respectively,
and by the 2010 International Fisheries Agreement Clarification Act for
GB yellowtail flounder, as described in Item 5 of this preamble.
Revisions to the OFLs and ABCs for the GB cod and GB haddock stocks are
based upon updated TRAC assessments of the eastern components of the
stock. It is anticipated that the FY 2012 values of the ABCs for GB
cod, GB haddock, and GB yellowtail flounder will be revised during
2011, based on new transboundary stock assessments conducted by the
TRAC, and will likely be specified again in conjunction with the FY
2012 U.S./Canada Management Area total allowable catch (TAC) levels, as
further described in Item 5 of this preamble. Table 3 contains the OFLs
and ABCs for FYs 2011 and 2012 proposed under FW 45 with the exception
of GB yellowtail flounder, as noted below. The expected economic
impacts of the proposed ABCs are summarized below.
For GB yellowtail flounder, the FY 2011 U.S. ABC shown in Table 3
represents a revised shared U.S./Canada Management Area TAC based upon,
and consistent with, determinations and decisions about this stock by
the Transboundary Management Guidance Committee (TMGC), pursuant to the
Understanding in a February 9, 2011, conference call. This meeting of
the TMGC was precipitated based on provisions of the recently enacted
International Fisheries Agreement Clarification Act which provides
increased flexibility to NMFS and the Council in setting higher fishing
limits for those portions of stocks subject to the Understanding. This
Act states that decisions made under that Understanding should be
considered as ``management measures under an international agreement''
that ``dictate otherwise'' for purposes of section 304(e)(4)(A)(ii) of
the Act (16 U.S.C. 1854(e)(4)(A)(ii)) and that the Council and the
Secretary of Commerce may ``establish catch levels for those portions
of fish stocks within their respective geographic areas covered by the
Understanding on the date of enactment of this Act that exceed the
catch levels otherwise required under the Northeast Multispecies
Fishery Management Plan if * * * overfishing is ended immediately.''
(Sec. 202(2) and (3) of the International Fisheries Agreement Act).
Because the U.S./Canada Management Area represents the entire stock
area for GB yellowtail flounder, the shared U.S./Canada Management Area
TAC for this stock also represents the ABC for this stock. The revised
ABC agreed to by the TMGC is being proposed consistent with the
provisions of the International Fisheries Agreement Clarification Act
and the harvest strategy of the Understanding that requires overfishing
to be prevented and the facilitation of the rebuilding of overfished
stocks.
The revised ABC recommended by the TMGC is higher than that
approved by the Council's SSC and adopted by the Council in FW 45
(i.e., a U.S. ABC of 1,099 mt for FY 2011 and 1,222 mt for FY 2012).
Because this revised ABC was not considered by the Council in FW 45,
NMFS proposes to implement the revised FY 2011 ABC and ACL for this
stock as a separate but parallel action to FW 45 pursuant to its
emergency action authority specified in section 305(c) of the Magnuson-
Stevens Act. NMFS has determined that the adoption of the International
Fisheries Agreement Clarification Act meets the criteria for proposing
this emergency action, as explained further in Item 5 of this preamble.
Because this proposed revision would be made under the authority to
implement a Secretarial emergency action pursuant to section 305(c) of
the Magnuson-Stevens Act instead of a Council action, the involvement
of the SSC in the specification of the ABC for this stock is not
specifically required, although the emergency rule must still be
consistent with the best scientific information available. Although
NMFS could wait for the SSC to consider the new assessment, the time
necessary to complete such a process would unduly delay the possibility
of increasing the TAC for this stock as quickly as possible and
addressing the emergency exigencies of this matter. NMFS has determined
that revising the ABC and ACL through this proposed emergency action is
consistent with best scientific information available. The duration of
this proposed revision to the GB yellowtail flounder ABC is limited by
the Magnuson-Stevens Act to 180 days, but may be extended to make the
revised ABC and ACL effective for the duration of FY 2011 (through
April 30, 2012), consistent with the authority in the Magnuson-Stevens
Act to extend emergency actions for up to an additional 186 days.
For FYs 2010-2012, the SSC recommended that the ABC for GOM winter
flounder be specified based on 75 percent of recent catches of this
stock as part of FW 44. For FY 2011, the Council tasked the SSC with
reviewing the GOM winter flounder catches for FY 2009 and any
additional survey information collected since GARM III to determine
whether revisions to the FY 2011 and 2012 ABCs are necessary for this
stock. The SSC considered available information at its August 2010
meeting, as well as an alternative approach to determine the ABC for
GOM winter flounder by the Groundfish Plan Development Team (PDT) that
utilized an area-swept survey approach to determine the ABC for this
stock. However, the SSC was concerned that increased catch resulting
from the PDT's alternative approach to specifying ABC for this stock
could compromise stock status or rebuilding, given lingering
uncertainty regarding the information necessary to evaluate the risks
of jeopardizing stock status. Therefore, the SSC did not recommend any
changes to the ABC for this stock, and the FW 44
[[Page 11861]]
values for FY 2011 and FY 2012 are maintained.
The OFL value for a stock is calculated using the estimated stock
size for a particular year, and represents the amount of catch
associated with FMSY, i.e., the F that, if applied over the
long term, would result in MSY. The ABCs are those recommended to the
Council's SSC following the SSC's August 25-26, 2010, meeting and its
reports to the Council at the Council's September and November 2010
meetings. The ABCs recommended by the SSC are lower than the OFLs in
order to take into account scientific uncertainty in setting catch
limits. The ABC value for a stock is calculated using the estimated
stock size for a particular year based upon the ABC control rules
established by Amendment 16. The ABC represents the amount of catch
associated with 75 percent of FMSY, or the F rate required
to rebuild the stock within the defined rebuilding time period
(Frebuild), whichever is lower, with the exception of GOM
and Southern New England (SNE)/Mid-Atlantic (MA) winter flounder. For
SNE/MA winter flounder, the ABC recommendations are based on estimates
of discards that result from recent management measures. For GOM winter
flounder, the ABC recommendation is based on 75 percent of recent
catches.
Table 3--Proposed Revisions to Overfishing Levels and Acceptable Biological Catches
--------------------------------------------------------------------------------------------------------------------------------------------------------
OFL (mt, live weight) U.S. ABC (mt, live weight)
Stock -------------------------------------------------------------------------------------------------------
FY 2011 FY 2012 FY 2013 FY 2014 FY 2011 FY 2012 FY 2013 FY 2014
--------------------------------------------------------------------------------------------------------------------------------------------------------
Georges Bank cod................................ 7,311 * 8,090 NA NA 4,766 * 5,364 NA NA
Georges Bank haddock............................ 59,948 * 51,150 NA NA 34,244 * 29,016 NA NA
Georges Bank yellowtail flounder................ 3,495 * 4,335 NA NA ** 1,458 NA NA NA
White hake...................................... 4,805 5,306 NA NA 3,295 3,638 NA NA
Pollock......................................... 21,853 19,887 20,060 20,554 16,900 15,400 15,600 16,000
--------------------------------------------------------------------------------------------------------------------------------------------------------
* Preliminary estimates that may be revised in 2012 based on TRAC and TMGC considerations.
** This value represents an increase from the U.S. ABC adopted by the Council in FW 45 based on the flexibility afforded by the International Fisheries
Agreement Clarification Act and described further in Item 5 of this preamble.
4. ACLs
Similar to adjustments in the OFLs and ABCs described in Item 3 of
this preamble, FW 45 proposes revisions to the ACLs for several stocks,
including GB cod, GB haddock, GB yellowtail flounder, white hake, and
pollock. Pursuant to Magnuson-Stevens Act requirements and Amendment
16, the Council recommended ACLs that are lower than the ABCs, in order
to account for management uncertainty. The total ACL for a stock
represents the catch limit for a particular FY, considering both
biological and management uncertainty, and the limit includes all
sources of catch (landed and discards) and all fisheries (commercial
and recreational groundfish fishery, State-waters catch, and non-
groundfish fisheries). The division of a single ABC value for each
stock (for a particular FY) into sub-ACLs, and ACL-subcomponents,
accomplishes three objectives: (1) The ABC is sub-divided to account
for all components of the fishery and sources of fishing mortality; (2)
allocations are made for certain fisheries; and (3) management
uncertainty is taken into account, as described in Appendix II of FW
45.
For FW 45 the ABC was sub-divided into fishery components on a
stock-specific manner, prior to the consideration of management
uncertainty. The following components of the fishery are reflected in
the total ABC: Canadian share/allowance (expected Canadian catch); U.S.
ABC (available to the U.S. fishery after accounting for Canadian
catch); State waters (portion of ABC expected to be caught from State
waters outside Federal management); other sub-components (expected
catch by other non-groundfish fisheries such as exempted fisheries);
scallop fishery; mid-water trawl fishery; commercial groundfish
fishery; and recreational groundfish fishery. The percentage of the ABC
deducted for anticipated catch from State waters is between 1 and 10
percent for most stocks, but for Atlantic halibut and GOM winter
flounder, 50 percent and 25 percent of the ABC of each stock is set
aside for State waters catch, respectively. The amount deducted for
anticipated catch of other regulated species and ocean pout in other
sub-components of the fishery is between 4 to 6 percent of the ABC for
each stock, with the exception of windowpane flounder stocks, in which
29 percent is set aside for such catch.
The allocation of yellowtail flounder to the scallop fishery is not
changed by this framework. Under FW 44, the Council elected to allocate
100 percent of the estimated GB and SNE/MA yellowtail flounder bycatch
associated with the projected scallop catch in FY 2010, and 90 percent
of the yellowtail flounder bycatch projected for the scallop fishery in
FYs 2011 and 2012. Based on doubts about accurately estimating expected
bycatch in the scallop fishery and not wanting to unnecessarily
constrain the scallop fishery, the Council voted to maintain the
specific FW 44 allocations of yellowtail flounder to the scallop
fishery under FW 45, rather than base yellowtail flounder allocations
on current information about anticipated bycatch amounts in the scallop
fishery. Thus, the SNE/MA yellowtail flounder allocations to the
scallop fishery listed in Tables 5 and 6 are the same amounts
implemented under FW 44 in 2010 (the allocation of SNE/MA yellowtail
flounder remain at 82 and 127 mt, live weight, respectively during FYs
2011 and 2012), while the GB yellowtail flounder allocations to the
scallop fishery listed in Tables 11 and 12 remain at 200.8 and 307.5
mt, live weight, respectively, during FYs 2011 and 2012. No specific
allocation of Cape Cod (CC)/GOM yellowtail flounder would be made to
the scallop fishery, because the incidental catches of this stock by
the scallop fishery are relatively low. Catches of this stock will be
considered part of the ``other sub-component'' of the ACL.
The FY 2011 and 2012 yellowtail flounder allocations to the scallop
fishery are characterized as sub-ACLs to reflect the fact that the
Council adopted AMs for the scallop fishery that would be responsive to
yellowtail flounder catches in excess of these sub-ACLs, as part of
Amendment 15 to the Atlantic Sea Scallop FMP at its November 2010
meeting. A proposed rule soliciting comment on that action is expected
to
[[Page 11862]]
be published shortly, with a final decision to approve, partially
approve, or disapprove such measures expected in spring 2011. Current
regulations set a cap on the amount of yellowtail flounder that may be
harvested from the scallop access areas from the SNE/MA and GB
yellowtail flounder stock areas. Specifically, current regulations cap
yellowtail flounder harvest from scallop access areas at 10 percent of
the ``total TAC'' for each of the stock areas. In light of the proposed
ACL components, ``total TAC'' means ``total ACL.'' For FY 2011, this
means 10 percent of 1,416 mt (141.6 mt) for GB yellowtail flounder,
based on the proposed total ACL listed in Table 11 proposed based on
the flexibility afforded by the International Fisheries Agreement
Clarification Act, as further described in Item 4 of this preamble
below. Because the U.S./Canada Management Area represents the entire
stock area for GB yellowtail flounder, the U.S./Canada Management Area
TAC for this stock that is available to the U.S. fishery also
represents the ACL for this stock. The specification and distribution
of the GB yellowtail flounder ACL is discussed further in Item 5 of
this preamble and shown in Tables 11 and 12.
Under this action, the mid-water trawl fishery would be allocated
0.2 percent of the U.S. ABC for GB and GOM haddock. The values for the
allocations to the mid-water trawl fishery listed in Table 5 are
slightly less than 0.2 percent, due to the 7-percent reduction of these
allocations to account for management uncertainty for this stock. For
example, the FY 2011 ABC of 32,244 mt was multiplied by 0.002 (32,244
mt x .002 = 68.5 mt), and then reduced by 4.79 mt (68.5 mt x 0.07 =
4.79 mt) to arrive at the proposed allocation of 64 mt. Because the
herring fishery already has AMs associated with this allocation that
were developed as part of FW 43 (August 15, 2006; 71 FR 46871), all of
the haddock allocations to the mid-water trawl fishery are
characterized as sub-ACLs.
The concept of management uncertainty for the purpose of developing
ACLs, as outlined in the process specified in Amendment 16 and
described in detail in FW 44, was characterized as the likelihood that
management measures will result in a level of catch that is greater
than the catch objective. Consistent with that process, management
uncertainty was evaluated for each stock, considering the following
elements of the fishery and the FMP: Enforceability; monitoring
adequacy; precision of management tools; latent effort; and catch of
groundfish in non-groundfish fisheries. For most stocks and components
of the fishery (ABC components), the default adjustment (reduction) to
the catch level for a fishery component was 5 percent. For stocks with
less management uncertainty, the adjustment was 3 percent, and for
those stocks or components with more management uncertainty, the
adjustment was 7 percent.
Tables 5 through 8 list the proposed distribution of the total ACL
for stocks affected by measures in FW 45 to the groundfish fishery, the
scallop fishery, the mid-water trawl herring fishery, State waters
fisheries, and other fishery sub-components, such as exempted
fisheries. A full list of the FY 2011 ACLs will be sent to NE
multispecies permit holders and posted on the NMFS Northeast Regional
Office Web site (https://www.nero.noaa.gov) once finalized. As noted in
the FW 44 final rule, while ACLs are specified through FY 2012 for most
stocks, it is likely that the Council will adopt ACLs for FYs 2012
through 2014 though a future Council action. Therefore, ACLs specified
through FY 2012 in FW 44 and proposed in this action for FW 45 will
only be implemented if the anticipated Council action is delayed. In
contrast, the pollock ACLs are not expected to be revisited until FY
2013, with any changes effective for FY 2014. The proposed ACL listed
in Table 5 for white hake corrects an error published in Table 4 of
both the FW 44 proposed (February 1, 2010; 75 FR 5021) and final rules,
respectively, that listed the commercial sub-ACL for white hake for FY
2011 as 2,566 mt (the FY 2010 value) instead of the correct value of
2,974 mt. For a detailed description of the process used to estimate
management uncertainty and calculate ACLs as part of FW 45, refer to
Appendix II of the FW 45 EA (see ADDRESSES).
Table 5--Total ACL, Sub-ACL, and ACL-Subcomponents for FY 2011
[Mt, live weight]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Groundfish sub- Mid-water trawl State waters ACL Other ACL sub-
Stock Total ACL ACL Scallop fishery herring fishery sub-component components
--------------------------------------------------------------------------------------------------------------------------------------------------------
GB cod...................................... 4,540 4,301 0 0 48 191
GB haddock.................................. 32,616 30,840 0 64 342 1,370
SNE/MA yellowtail flounder.................. 641 524 82 0 0 27
White hake.................................. 3,138 2,974 0 0 33 132
Pollock..................................... 16,166 13,952 0 0 769 1,445
--------------------------------------------------------------------------------------------------------------------------------------------------------
Table 6--Total ACL, Sub-ACL, and ACL-Subcomponents for FY 2012
[Mt, live weight]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Groundfish sub- Mid-water trawl State waters ACL Other ACL sub-
Stock Total ACL ACL Scallop fishery herring fishery sub-component components
--------------------------------------------------------------------------------------------------------------------------------------------------------
GB cod *.................................... 5,109 4,841 0 0 54 215
GB haddock *................................ 27,637 26,132 0 54 290 1,161
SNE/MA Yellowtail flounder.................. 936 759 127 0 0 40
White hake.................................. 3,465 3,283 0 0 36 146
Pollock..................................... 14,736 12,612 0 0 754 1,370
--------------------------------------------------------------------------------------------------------------------------------------------------------
* Preliminary estimate that may be revised in 2012 based on Transboundary Resource Assessment Committee and Transboundary Resource Management Committee
considerations.
[[Page 11863]]
Table 7--Pollock Total ACL, Sub-ACL, and ACL-Subcomponents for FY 2013
[Mt, live weight]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Groundfish sub- Mid-water trawl State waters ACL Other ACL sub-
Stock Total ACL ACL Scallop fishery herring fishery sub-component components
--------------------------------------------------------------------------------------------------------------------------------------------------------
Pollock..................................... 14,927 12,791 0 0 756 1,380
--------------------------------------------------------------------------------------------------------------------------------------------------------
Table 8--Pollock Total ACL, Sub-ACL, and ACL-Subcomponents for FY 2014
[Mt, live weight]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Groundfish sub- Mid-water trawl State waters ACL Other ACL sub-
Stock Total ACL ACL Scallop fishery herring fishery sub-component components
--------------------------------------------------------------------------------------------------------------------------------------------------------
Pollock..................................... 15,308 13,148 0 0 760 1,400
--------------------------------------------------------------------------------------------------------------------------------------------------------
The commercial groundfish sub-ACL is further divided into the non-
sector (common pool vessels) sub-ACL and the sector sub-ACL, based on
the total vessel enrollment in all sectors and the cumulative Potential
Sector Contributions (PSCs) associated with those sectors. Table 9
lists the preliminary distribution of the groundfish sub-ACL between
common pool and sectors based on rosters submitted to NMFS as of
December 1, 2010. This distribution is different from the common pool
and sector sub-ACLs listed in the EA for FW 45, as those were based
upon preliminary sector roster information and do not reflect updated
rosters submitted to NMFS. However, this distribution is the same as
the sector sub-ACLs and ACE specified for each sector listed in the
proposed rule to approve sector operations plans for FY 2011. That rule
uses sector rosters submitted to NMFS as of December 1, 2010, to
calculate each individual sector's ACE for FY 2011, and which are
expected to publish soon. FY 2011 sector rosters will not be finalized
until May 1, 2011, because the owners of individual permits signed up
to participate in sectors have until April 30, 2011, to drop out of a
sector and fish in the common pool. Therefore, it is possible that the
FY 2011 sector sub-ACL listed in Table 9 and the proposed rule to
approve the FY 2011 sector operations plans will be reduced at a later
date, and the common pool sub-ACL will increase, due to vessels leaving
sectors and entering the common pool after publication of the FW 45
final rule and specification of ACLs for FY 2011.
Despite such changes, the proposed groundfish sub-ACL (common pool
sub-ACL plus the sector sub-ACL) listed in Tables 5 through 8 would not
likely change. Based on the final rosters, NMFS intends to publish a
rule in early May 2011 to modify these sub-ACLs, and notify the public
if these numbers change. In addition, it is almost certain that all of
the FY 2012 sub-ACLs for the common pool and sectors will change and be
re-specified prior to FY 2012 due to annual changes to the sector
rosters and changes to the ABCs for GB cod, GB haddock, and GB
yellowtail flounder based on the specification of Canadian TACs for
these stocks, as described above in Item 5 of this preamble.
Table 9--Preliminary Distribution of Groundfish Sub-ACL Between Common Pool and Sector Vessels
[Mt, live weight]
----------------------------------------------------------------------------------------------------------------
Groundfish sub-ACL Common pool sub-ACL Sector sub-ACL
Stock -----------------------------------------------------------------------------
FY 2011 FY 2012 * FY 2011 FY 2012 * FY 2011 FY 2012 *
----------------------------------------------------------------------------------------------------------------
Georges Bank cod.................. 4,301 4,841 99 111 4,202 4,730
Georges Bank haddock.............. 30,840 26,132 129 109 30,711 26,023
Georges Bank yellowtail flounder 1,142 1,142 17.4 17.4 1,124.6 1,124.6
**...............................
White hake........................ 2,974 3,283 35 39 2,939 3,244
Pollock........................... 13,952 12,612 138 125 13,814 12,487
----------------------------------------------------------------------------------------------------------------
* Preliminary estimate that may be revised in 2012 based on updated sector rosters and Transboundary Resource
Assessment Committee and Transboundary Resource Management Committee considerations.
** These values represent an increase from the ACLs adopted by the Council in FW 45 based on the flexibility
afforded by the International Fisheries Agreement Clarification Act and described further in Item 5 of this
preamble.
5. Annual Specifications for the U.S./Canada Management Area
The FMP specifies a procedure for setting annual hard TAC levels
(i.e., TACs that, when reached, will trigger a regulatory response in
the form of area closures or other restrictions) for Eastern GB cod,
Eastern GB haddock, and GB yellowtail flounder in the U.S./Canada
Management Area. The regulations governing the annual development of
TACs were authorized by Amendment 13 to the FMP in order to be
consistent with the Understanding, an informal agreement between the
Northeast Region of NMFS and the Maritimes Region of the Department of
Fisheries and Ocean of Canada (DFO) that outlines a process for the
management of the shared GB groundfish resources. The Understanding
specifies an allocation of TAC for these three stocks for each country,
based on a formula that considers historical catch percentages and
current resource distribution.
Annual TACs for these stocks are determined through a process
involving the Council, the TMGC, and the U.S./Canada Transboundary
Resources Steering Committee. In August 2010, the TMGC approved the
2010 Guidance
[[Page 11864]]
Documents for Eastern GB cod and Eastern GB haddock, which included
recommended U.S. TACs for these stocks. The recommended FY 2011 TACs
were based on the most recent stock assessments (TRAC Status Reports
for 2010), and the fishing mortality strategy shared by NMFS, the
Department of Fisheries and DFO. The shared strategy has two parts: (1)
To maintain a low to neutral (less than 50-percent) risk of exceeding
the F limit reference (Fref = 0.18, 0.26, and 0.25 for cod, haddock,
and yellowtail flounder, respectively); and (2) when stock conditions
are poor, F should be further reduced to promote rebuilding. The
Council reviewed the recommendations of the TMGC and approved those
recommendations at its September 2010 meeting, as detailed further
below.
The TMGC concluded that the most appropriate combined U.S./Canada
TAC for Eastern GB cod for FY 2011 is 1,050 mt. This TAC corresponds to
the average of the pertinent two models for a low risk (less than 25-
percent) of exceeding the Fref of 0.18 (i.e., FMSY) in FY
2011, and a greater than neutral probability of biomass growth of up to
10 percent. The annual allocation shares between countries for FY 2011
are based on a combination of historical catches (10-percent weighting)
and resource distribution based on trawl surveys (90-percent
weighting). Applying this formula results in the proposed allocations
of 19 percent of the shared TAC to the U.S. and 81 percent for Canada,
or a FY 2011 quota of 200 mt for the U.S. and 850 mt for Canada.
For Eastern GB haddock, the TMGC concluded that the most
appropriate combined U.S./Canada Management Area TAC for FY 2011 is
22,000 mt. This corresponds to a 50-percent risk of exceeding Fref
(i.e., FMSY) of 0.26, assuming the entire TAC will be caught
in FY 2010. In reality, this TAC level represents a low risk level,
because the anticipated catch in FY 2010 will likely be less than the
FY 2010 TAC. The annual allocation share recommendations between
countries for FY 2010 are based on a combination of historical catches
(10-percent weighting) and resource distribution based on trawl surveys
(90-percent weighting). Applying this formula results in proposed
allocations of 43 percent of the shared TAC to the U.S. and 57 percent
to Canada, or a FY 2011 quota of 9,640 mt for the U.S. and 12,540 mt
for Canada.
For GB yellowtail flounder, the TMGC concluded that the most
appropriate combined U.S./Canada Management Area TAC for FY 2011 is
1,900 mt. This TAC corresponds to a low probability (< 25 percent) of
exceeding Fref (i.e., FMSY) of 0.25, and an
expected 10-percent increase in median biomass from 2011 to 2012. The
TMGC noted that F was below 0.15 in 2008 and 2009. The annual
allocation share recommendations between countries for FY 2011 are
based on a combination of historical catches (10-percent weighting) and
resource distribution based on trawl surveys (90-percent weighting).
This weighting results in proposed allocations of 55 percent of the
shared TAC to the United States and 45 percent to Canada, or a FY 2011
quota of 1,045 mt for the United States and 855 mt for Canada.
Table 10--2011 U.S./Canada TACs (Mt, Live Weight) and Percentage Shares (In Parentheses)
----------------------------------------------------------------------------------------------------------------
Eastern GB GB yellowtail
Eastern GB cod haddock flounder
----------------------------------------------------------------------------------------------------------------
Total Shared TAC....................................... 1,050 22,000 1,900
U.S. TAC............................................... 200 (19%) 9,640 (43%) 1,045 (55%)
Canada TAC............................................. 850 (81%) 12,540 (57%) 855 (45%)
----------------------------------------------------------------------------------------------------------------
This proposed rule notifies the public that a recent statute, the
International Fisheries Agreement Clarification Act, signed by
President Obama on January 4, 2011, affects the proposed FY 2011 U.S./
Canada Management Area TAC and ACL for GB yellowtail flounder.
Specifically, the new statute allows for additional flexibility under
the Understanding regarding the range of catch levels that may be
considered for GB yellowtail flounder, which allows for a higher yearly
TAC for this species.
As described in Item 4 of this preamble, the catch limits for GB
yellowtail flounder result from the annual recommendation of the TMGC,
a group that consists of NMFS and United States fishing industry
representatives and their counterparts in the DFO and the Canadian
fishing industry. Based on the new flexibility provided by the
International Fisheries Clarification Act, the TMGC held a conference
call on February 9, 2011, to reconsider the FY 2011 shared GB
yellowtail flounder TAC. During this conference call, the TMGC agreed
to a revised shared GB yellowtail flounder TAC for FY 2011 of 2,650 mt
(documentation of this call is available from NMFS, see ADDRESSES).
This revised TAC represents a 39 percent increase compared to the FY
2011 TAC (i.e., 1,900 mt) originally adopted by the Council as part of
FW 45, and would increase the amount of GB yellowtail flounder
allocated to the directed NE multispecies fishery (1,142 mt) by 44
percent compared to the amount of this stock originally allocated to
this fishery under FW 45 (790.7 mt). NMFS is considering implementing
this revised U.S./Canada Management Area TAC for this stock based upon
Secretarial emergency authority specified in section 305(c) of the
Magnuson-Stevens Act through the final rule that would implement
approved measures under FW 45. To put this in the context of the
Magnuson-Stevens Act, NMFS is proposing to disapprove the ABC, ACL, and
U.S./Canada Management Area TAC for GB yellowtail flounder adopted by
the Council in FW 45, and to replace them, through its emergency
authority, with the revised ABC, ACL, and U.S./Canada Management Area
TAC for this stock recommended by the TMGC following its February 9,
2011 conference call.
NMFS policy guidelines for the use of emergency rules (August 21,
1997; 62 FR 44421) specify the following three criteria that define
what an emergency situation is, and justification for final rulemaking:
(1) The emergency results from recent, unforeseen events or recently
discovered circumstances; (2) the emergency presents serious
conservation or management problems in the fishery; and (3) if the
emergency action is being implemented without prior public comment, the
emergency can be addressed through emergency regulations for which the
immediate benefits outweigh the value of advance notice, public
comment, and deliberative consideration of the impacts on participants
to the same extent as would be expected under the normal rulemaking
process. In this case, the third prong of these criteria is not
directly involved because NMFS is providing opportunity for prior
public comment. NMFS policy guidelines further provide that emergency
action is justified for certain situations where
[[Page 11865]]
emergency action would prevent significant direct economic loss, or to
preserve a significant economic opportunity that otherwise might be
foregone. The 2010 International Fisheries Agreement Act, signed into
law by President Obama on January 4, 2011, is considered to be a
``recently discovered circumstance,'' because the Council was not aware
if or when the legislation would be considered by Congress when it
adopted final measures under FW 45 at its November 2010 meeting. The
emergency presents serious management concerns because the low catch
limits for GB yellowtail flounder dictated by Magnuson-Stevens Act
requirements in force before the International Fisheries Agreement Act
was enacted could result in substantially reduced fishing effort and
decreased catch and revenue compared to the higher catch limits that
would be available if action is taken pursuant to the International
Fisheries Agreement Act. For the common pool fishery, when the
projected catch of GB yellowtail flounder is equal to the common pool
GB yellowtail flounder sub-ACL, such vessels may no longer fish in the
Eastern U.S./Canada Area, and may not possess yellowtail flounder
caught in the Western U.S./Canada Area. For vessels fishing in sectors,
when an individual sector's GB yellowtail flounder ACE is caught,
participating vessels may no longer fish in the U.S./Canada Management
Area. As a result of the loss of access to the Eastern U.S./Canada Area
(for common pool vessels) or the whole U.S./Canada Management Area (for
sector vessels), not only do vessels lose revenue associated with GB
yellowtail flounder, but they lose revenue associated with multiple
other stocks that are caught concurrently, such as GB winter flounder.
Emergency action to increase the GB yellowtail flounder ACL and U.S./
Canada Management Area TAC would enable additional economic opportunity
that could otherwise be forgone and, therefore, likely avoid economic
impacts from an unnecessarily low ACL for this stock, based upon
applicable law. Therefore, NMFS has determined that the current
situation meets the criteria for emergency action.
Because the U.S./Canada Management Area represents the entire stock
area for GB yellowtail flounder, the U.S./Canada Management Area TAC
for this stock that is available to the U.S. fishery also represents
the ACL for this stock. Thus, the revised GB yellowtail flounder TAC
proposed in this action also requires applicable changes to the ACL,
and how the ACL for this stock is distributed to the various components
of the fishery that catch this stock, that were adopted by the Council
in FW 45. The proposed revised GB yellowtail flounder ACL, sub-ACL, and
ACL sub-components are specified in Tables 11 and 12 for FYs 2011 and
2012, respectively. A revised U.S./Canada TAC for GB yellowtail
flounder would not affect the sub-ACL for the scallop fishery,
specified by FW 45 as 200.8 mt.
Table 11--Revised GB Yellowtail Flounder Total ACL, Sub-ACL, and ACL-Subcomponents for FY 2011
[Mt, live weight]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Mid-Water trawl herring State waters ACL sub- Other ACL sub-
Total ACL Groundfish sub-ACL Scallop fishery fishery component components
--------------------------------------------------------------------------------------------------------------------------------------------------------
1,416 1,142 200.8 0 0 73
--------------------------------------------------------------------------------------------------------------------------------------------------------
Table 12--Revised GB Yellowtail Flounder Total ACL, Sub-ACL, and ACL-Subcomponents for FY 2012
[Mt, live weight]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Mid-water trawl herring State waters ACL sub- Other ACL sub-
Total ACL* Groundfish sub-ACL Scallop fishery fishery component components
--------------------------------------------------------------------------------------------------------------------------------------------------------
1,426 1,046 307.5 0 0 77
--------------------------------------------------------------------------------------------------------------------------------------------------------
* Preliminary estimate that may be revised in 2011 based on TRAC and TMGC considerations.
The regulations related to the Understanding, promulgated by the
final rule implementing Amendment 13, state that ``any overages of the
GB cod, haddock, or yellowtail flounder TACs that occur in a given
fishing year will be subtracted from the respective TAC in the
following fishing year.'' Therefore, if an analysis of the catch of the
shared stocks by U.S. vessels indicates that an over-harvest occurred
during FY 2010, the pertinent components of the ACL would be adjusted
downward in order to be consistent with the FMP and Understanding. If
an adjustment to one of the FY 2011 TACs of cod, haddock, or yellowtail
flounder is necessary, it will be done consistent with the
Administrative Procedure Act, and the fishing industry will also be
notified.
6. Incidental Catch TACs and Allocations to Special Management Programs
This proposed rule specifies incidental catch TACs applicable to
the NE multispecies special management programs (i.e., special access
programs (SAPs) and the Regular B DAS Program) for FYs 2011 and 2012,
based on the proposed common pool sub-ACLs listed in Item 4 of this
preamble. As noted above, FY 2011 sector rosters will not be finalized
until May 1, 2011, because permits currently enrolled in sectors have
until April 30, 2011, to drop out of a sector and fish in the common
pool. Therefore, the amount of the common pool sub-ACL may change based
upon changes to the number of vessels participating in the common pool
during FY 2011. Based on the final rosters, NMFS will publish a rule in
early May 2011 to modify these sub-ACLs, and notify the public if these
numbers change.
Incidental catch TACs are specified for certain stocks of concern
(i.e., stocks that are overfished or subject to overfishing) for common
pool vessels fishing in the special management programs, in order to
limit the amount of catch of stocks of concern that can be caught under
such programs. The Incidental Catch TACs proposed below are consistent
with the allocation of incidental catch TACs among special management
programs in the FMP. However, because pollock is no longer considered
overfished or subject to overfishing, FW 45 proposes to remove this
species from the list of stocks of concern, and eliminate the
incidental catch TAC for this stock.
[[Page 11866]]
The incidental catch TACs apply to catch (landings and discards)
that end on a Category B DAS (either Regular or Reserve B DAS). The
catch of stocks for which incidental catch TACs are specified on trips
that start under a Category B DAS and then flip to a Category A DAS do
not accrue toward such TACs, but rather the overall common pool sub-ACL
for that stock. The incidental catch TACs by stock based on the common
pool sub-ACL are shown in Table 13, while Tables 14 and 15 list the
distribution of these TACs among existing special management programs.
Table 13--Preliminary Common Pool Incidental Catch TACs by Stock for FY 2011-2012
[Mt, live weight]
----------------------------------------------------------------------------------------------------------------
Percentage of sub- 2011 Incidental 2012 Incidental
Stock ACL catch TAC catch TAC
----------------------------------------------------------------------------------------------------------------
GB cod................................................. 2 2.0 2.2
GOM cod................................................ 1 1.3 1.3
GB yellowtail flounder................................. 2 0.3 0.3
CC/GOM yellowtail flounder............................. 1 0.3 0.4
SNE/MA yellowtail flounder............................. 1 1.1 1.7
American plaice........................................ 5 3.9 4.1
Witch flounder......................................... 5 1.2 1.2
SNE/MA winter flounder................................. 1 7.3 7.6
GB winter flounder..................................... 2 0.3 0.3
White hake............................................. 2 0.7 0.8
----------------------------------------------------------------------------------------------------------------
Table 14--Distribution of Incidental Catch TACs Among Special Management Programs
[Mt, live weight]
----------------------------------------------------------------------------------------------------------------
Closed area I
Regular B DAS hook gear Eastern U.S./
Stock program (percent) haddock SAP Canada haddock
(percent) SAP (percent)
----------------------------------------------------------------------------------------------------------------
GB cod................................................. 50 16 34
GOM cod................................................ 100 na na
GB yellowtail flounder................................. 50 na 50
CC/GOM yellowtail flounder............................. 100 na na
SNE/MA yellowtail flounder............................. 100 na na
Plaice................................................. 100 na na
Witch flounder......................................... 100 na na
SNE/MA winter flounder................................. 100 na